COURSE CODE: LLB 202 A

COURSE NAME: EVIDENCE 1

TAKEAWAY ASSIGNMENT: STANDARD OF PROOF
ADMISSION NUMBER: 22-2815

SUBMITTED TO: JUSTUS M. MUTIA

When a matter, whether civil or criminal is brought to court, it must be accompanied by
evidence or evidence suggesting whether the said claim or petition by the plaintiff or defense
by the defendant or accused is credible. All these pieces of evidence ought to be closely
looked at in determining a decision for the case. Since evidence happens to be such a critical
part of a trial or suit, it is therefore imperative to have a concept that examines and proves the
said claims in court in order to uphold justice. This concept is called the standard of proof.

Standard of proof refers to the quantity of evidence required in a court trial to substantiate a
statement or claim. For the case to be successful, the party must provide the evidence to back
it up.1 This basically means that for a certain claim or assertion to be made in court necessary
evidence should be produced. It is worth noting that the standard of proof should not be
confused by the burden of proof. The burden of proof refers to the necessity or duty of
affirmatively proving a fact or facts in dispute or an issue raised between the parties in a
case.2 For example, the burden of proof in criminal cases lies with the prosecution but on the
other hand the standard of proof should be beyond reasonable doubt.

Essentially, there are two main standards of proof that are applicable in Kenya. These
include, a balance of probabilities as the first standard of proof and proof beyond reasonable
doubt. This basically indicates that the standard of proof that are applicable vary based on the
kind of case. The higher the standard of proof, the more serious the consequences.3 It is
without a doubt that this is rightly so. This is because potential incarceration or loss of liberty
requires a higher standard of proof than a dispute about a contract or money. The case
whereby the accused faces a jail term ought to have a higher standard of proof because of the
consequences attached to it as compared to a dispute. The standard of proof; a balance of
probabilities is presented to the court by the plaintiff in civil cases while proof beyond
reasonable doubt is presented to the court by the prosecution in criminal cases.4

The first matter at hand with regards to the standard of proof is ‘a balance of probabilities’.
This can be married together with the concept of preponderance of evidence. This standard of
proof is usually used in civil cases with a few exceptions which shall be discussed later on. It
is important to remember that when the defendant chooses not to present any evidence, (no
case to answer) the same standard should be applied when coming up with a decision. The

1
Black’s Law Dictionary, 8 edn
2
ibid
3
L. Cohen, The Probable and The Provable (standards of proof in courts of law), Oxford: Clarendon Press,
1977
4
ibid
concept on a balance of probability can well be explained in the case of Miller v Minister of
Pensions. In this case, the wife of the deceased sought pension or rather funding after the
death of her husband who at the time was serving the country as an officer. The husband, the
deceased served in the army, and while in service, he became unwell with the cancer of the
gullet. This rendered the deceased so unwell that he was unable to eat. The plaintiff’s
husband passed on after a few months.5 The question therefore arose whether the wife should
be credited her pension due to the husbands service or not. The defendant argued that it
should not be the case because the plaintiff’s husband did not in fact die in service but rather
due to an ailment. It was therefore the plaintiff’s burden to prove their case. In this case
Denning J. has the following to say on the matter of balance of probabilities, ‘[…] it must
carry a reasonable degree of probability, but not so high as is required in a criminal case. If
the evidence is such that the tribunal can say; “we think it more probable than not”, the
burden is discharged, but if the probabilities are equal it is not. […]’6

What Denning J. seeks to clarify is the fact that the standard of proof as aforementioned does
not seek to know the truth but rather it seeks to show that a certain claim is more likely to be
truth than not.7 This in legal terms is referred to as the slight tipping of the scale to one side.
Once this slight tipping is established then that party wins the suit or case. For example, in a
civil case, one only needs to show that a plaintiff’s dust allergies were caused by faulty air
conditioning unit and not incorrect installation. This standard of proof can also be seen in the
case of Njogu v Maingi, where the principle applied. The court argued that, ‘[…] when the
court is faced with two probabilities, it can only decide the case on a balance of probability, if
there is evidence to show that one probability is more probable.[…]’8 The court however
dismissed the case. The above illustrates a balance of probabilities as a standard of proof in
civil cases.

Next, it is imperative to tackle on the preponderance of evidence since this concept is related
to balance of probability. In hind sight, these two concept naturally refer to the same thing, in
the case of Karch v Karch, the definition of this standard of proof is provided; […] is the
greater weight of evidence due to tip of a scale slightly and is the criteria or requirement for
the preponderance of evidence.[…]9The facts of this case were as follows, the plaintiff, was
the wife of the defendant. She had come to court seeking protection from her abusive
5
Miller v Minister of Pensions (1947) All 2 ER 373
6
ibid
7
B. Loomes & J. Shubert, Preponderance of Evidence
8
Njogu v Maingi (2000) eKLR
9
Karch v Karch 885 A 2d 535
husband who put his arms around the plaintiff and threatened to snap her neck. In addition, to
this the defendant made a motion with his arms as if he was firing a gun and said, ‘now here
is your future…’. The plaintiff claimed that she was afraid and that she could not sleep in
their house. She therefore opted to sleep in her car but she found her tyres punctured. The
defendant claimed that the evidence produced (bruising on neck and head) was not sufficient.
The court held that the wife be granted her protection. From the above discussion the plaintiff
essentially in order to win the suit only needed to provide evidence that her claim,(an abusive
husband) was more likely to be true than not true.

Moreover, this standard of proof is used to seek to resolve an issue of liability or wrong doing
in civil cases. It is therefore subjective and the standard of proof should be more than fifty
percent. The court does not need to be convinced by the evidence but should trust the actual
evidence resented by the plaintiff that their version of the story is most likely the truth. These
usually includes a myriad of things. For example the evidence can be presented as
documents, witness statements, photographs among many other forms of evidence. The
aforementioned concepts show the preponderance of evidence as a standard of proof; though
not a major one.

The exceptions to the standard of proof regarding the balance of probabilities include; the
criminal standard of proof- proof beyond reasonable doubt is the proper norm to follow in
committal procedures for civil contempt of court, the criminal standard of proof can also be
required in civil proceedings pursuant to statute and the last scenario where the civil standard
is indistinguishable from proof beyond reasonable doubt is applications of sex offender
orders under section 2(1) of the Crime and Disorder Act; that the person against whom the
order is sought is a sex offender.10 This is also in addition to section 104 of Sexual Offences
Act. These orders seek to protect society from sexual harm.11 In the cases stated above,
judges are highly encouraged to apply the criminal standard of proof, even if the matter
appears to be a civil case.

Other scenarios where judges ought to be flexible include allegations of crime in civil
proceedings, matrimonial cases and under miscellany of different cases. In such exceptions,
then the standard of proof is slightly higher than a balance of probability and edges more
closely to the proof beyond reasonable doubt or even the proof beyond reasonable doubt in
itself. In these cases the judges’ decisions are usually more subjective rather than directly

10
Crime and Disorder Act 1998
11
Sexual Offences Act 2003
stipulated. For example two judges can be presented by the same case and have different
judgements. An example of such a scenario is under matrimonial cases, in the case of Hornal
v Neuberger Denning J. stated,12

[…]In support of his conclusion that the civil standard applied, his Lordship
referred to the views which he had expressed in Bater v Bater where he said
that civil cases must be proved by a preponderance of probability, but there are
many degrees of probability within the standard. […]
From the above, one can see that the judge under civil cases supports the balance of
probabilities while in other cases a judge might opt to use the proof beyond reasonable doubt
as seen and illustrated by Lord McDermont, in Preston- Jones v Preston- Jones13

[…]The jurisdiction in divorce involves the status of the parties and the public
interest requires that the marriage bond shall not be set aside lightly…this
decision may be regarded as little more than an application of the law as it stood
then, that the presumption of legitimacy could only be rebutted by proof beyond
reasonable doubt […].
In such cases a flexibility is therefore allowed.
The second standard of proof is proof beyond reasonable doubt. This standard of proof is
used in criminal proceedings and some exeptions to civil cases. In Republic v Savi
Muvingala, the High Court relied on the Black’s Law Dictionary definition of proof beyond
reasonable doubt which refers to, ‘[…] the state of the case which, after the entire comparison
and consideration of all the evidence, leaves the minds of Jurors in that condition that they
cannot say they feel an abiding conviction to amoral certainty of the truth of the charge.14
The above statement basically implies that the prosecution has to persuade the jury that the
evidence used in the trial cannot lead to any other plausible conclusion.

It is worth noting that the burden of proof, and therefore the standard of proof lies on the
prosecution. In criminal trials, therefore the judge must direct the jury on the standard of
proof that the prosecution ought to meet. It has been said that when the accused pleads not
guilty then even the identity of the accused becomes an issue that must be proven in court and
it is the duty of the prosecution to do so (innocent until proven guilty). The evidence provided
must seek to show that indeed the accused committed the crime or did not commit the crime.

Denning J. in Miller v Minister of Pensions seeks to define this standard,15

12
Hornal v Neuberger Products Limited CA 1956
13
Preston- Jones v Preston- Jones
14
Republic v Muvingala 2018 eKLR
15
n5
 […] it need not reach certainty, but it must carry a high degree of probability.
Proof beyond a reasonable doubt does not mean proof beyond shadow of doubt.
The law would fail to protect the community if it admitted fanciful possibilities
to deflect the course of justice. If the evidence is so strong against a man as to
leave only a remote possibility in his favour, which can be dismissed with the
sentence, “ of course it is possible but not in the least probable” the case is
proved beyond reasonable doubt, but nothing short of that will suffice.[…]
This definition emphasizes on the definition of this standard of proof. A case that illustrates
the proof beyond reasonable doubt is Gedeon Njoroge v Republic, where the accused was
charged and convicted of defiling a thirteen year old girl. He then appealed. He appealed on
the grounds that the judged pronounced a conviction without considering whether the
evidence before court was beyond reasonable doubt among many other appeals. The
complainant provided contradictory evidence to the court. For example the complainant was
not candid as to who defiled her and that she lied to the police. She thus contradicted herself
and kept on changing her story. The court then held, that probable suspicion cannot be the
basis of a conviction. The appeal was therefore allowed and conviction quashed.16

The aforementioned case is therefore backed up by what the court said in Pius Arab Maina v
Republic where it was said, […] it is gain that the prosecution must prove a criminal charge
beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution’s case raising
material doubts must be in favor of the accused.17

In conclusion, the above describes the different standards of proof which are applicable in
different categories of cases.

16
Njoroge v Republic 2019 eKLR
17
Maina v Republic 2013 eKLR
REFERENCES
1. Black’s Law Dictionary, 8 edn
2. B. Loomes & J. Shubert, Preponderance of Evidence
3. Crime and Disorder Act 1998
4. Hornal v Neuberger Products Limited CA 1956
5. Karch v Karch 885 A 2d 535
6. L. Cohen, The Probable and The Provable (standards of proof in courts of law), Oxford: Clarendon
Press, 1977
7. Maina v Republic 2013 eKLR
8. Miller v Minister of Pensions (1947) All 2 ER 373
9. Njogu v Maingi (2000) eKLR
10. Njoroge v Republic 2019 eKLR
11. Preston- Jones v Preston- Jones
12. Republic v Muvingala 2018 eKLR
13. Sexual Offences Act 2003