JUDICIAL NOTICE

Judicial notice is defined as what judges see or the liberty accorded a judicial officer acting
as such to recognise the existence or non-existence of certain facts or phenomena without
calling for evidence.

On what basis will Judicial Notice be allowed: -

1. The habit or customs of the court and this relates to the authenticity for instance of
certain signatures. You don’t have to prove the authenticity every time they come to
court. Seals of the court you don’t have to prove their authenticity because the court
habitually uses the seal. The names and official designation of high ranking officers
past and present; International relations of a country if Kenya is at war with a country
judges are expected to know;

2. Where statutes decree that certain things be judiciary noticed e.g. certain certificates
that judges will decree should be taken judicial notice of;
3. Need to make things workable e.g. the practice of the court, how the court conducts
itself is taken judicial notice of. Ordinary rules of reasoning don’t need evidence to
be proved.

4. Basis of judicial notice is that of matters that are known by everybody e.g. judges
would know that if you imbibe certain liquids you can get intoxicated this is
commonly known. One cannot assume that judges are so ignorant that they won’t
know what everybody else knows.

The effects of judicial notice Section 59 of the Evidence Act

“No fact of which the court shall take judicial notice need be proved.

Judicial notice dispenses with proof.

Sections 60 enumerates matters that the court should take judicial notice of.

60. (1) The courts shall take judicial notice of the following facts:-
(a) All written laws, and all laws, rules and principles, written or unwritten,
having the force of law, whether in force or having such force as aforesaid
before, at or after the commencement of this Act, in any part of Kenya;

(b) The general course of proceedings and privileges of Parliament, but not
the transactions in their journals;

(c) Articles of War for the Armed Forces;

(d) The public seal of Kenya; the seals of all courts of Kenya; and all seals
which any person is authorized by any written law to use;

(e) The accession to office, names, titles, functions and signatures of public
officers, if the fact of their appointment is notified in the Gazette;

(f) The existence, title and national flag of every State and Sovereign
recognized by the Government;

(g) Natural and artificial divisions of time, and geographical divisions of the
world, and public holidays;

(h) The extent of the territories comprised in the Commonwealth;

(i) The commencement, continuance and termination of hostilities between

Kenya and any other State or body of persons;
 (j) The names of the members and officers of the court and of their deputies,
subordinate officers and assistants, and of all officers acting in execution
or its process, and also of all advocates and other persons authorized by
law to appear or act before it;

(k) The rule of the road on land or at sea or in the air;

(l) The ordinary course of nature; Preston Jones V. Preston Jones – Preston
went abroad and resided there for 9 months and therefore had no nuptial
intercourse with his wife. 3 months after he came back, a baby was born
to his wife fully mature. He petitioned for divorce on the grounds of
adultery. Relying on the evidence that the ordinary course of nature i.e.
that human gestation period was 9 months and not 12 or 3 months. The
court held that the matrimonial offence of adultery was not proved. In the
words of judges “though the court took judicial notice of the normal life of
human gestation period, it was not completely ruled out that there could be
abnormal periods of human gestation.

(m) The meaning of English words;

(n) All matters of general or local notoriety; (things that everyone knows)
(o) All other matters of which it is directed by any written law to take judicial
notice.

Should we take judicial notice of customary law?

Kimani Gikanga

The issue arose as to whether in a dispute involving customary law whether customary law
should be taken judicial notice of. Judges were of the opinion that the party that seeks to rely on
the customary should prove that customary law as a matter of fact by calling expert witnesses.
This is because of the difficulty of establishing what the customary law is at any given time since
it is unwritten.

Section 18 of the Magistrates Act

Magistrates are allowed to take Judicial Notice of customary law without having to call for proof
for it and if there is a dispute, then it will have to be established by proof. If customary law is a
disputed tenet, then there is need for proof. If there are contentions then proof will have to be
called.

Section 60 (1) (b) Judicial Notice should be taken of the general course of proceedings and
privileges of parliament, but not the transactions in their journals.

The court need not call for evidential proof of privileges accorded to parliament. These
provisions however exempts from judicial notice transactions in parliamentary journals.
Whatever is recorded in the Hansard is not going to be taken judicial notice of.

Section 60 (1) (c) - Judicial Notice should be taken of articles of war for the Armed Forces.

Section 60 (1)(e) - the public seal of Kenya; the seals of all courts of Kenya; and all
seals which any person is authorized by any written law to use;

Section 60 (1) (f) - The accession to office, names, titles, functions and signatures of public
officers if the fact of their appointment is notified in the Gazette;

Section 60 (1) (g) the existence, title and national flag of every State and Sovereign recognized
by the Government; this is to avoid embarrassment.
Section 60 (1) (h) Natural and artificial divisions of time, and geographical divisions of the
world, and public holidays;

Section 60 (1)(i) The extent of the territories comprised in the commonwealth;

Section 60 (1)(j) the commencement, continuance and termination of hostilities between
Kenya and any other State or body of persons;

Section 60 (1)(k) the names of the members and officers of the court and of their deputies,
subordinate officers and assistants, and of all officers acting in execution of its process, and also
of all advocates and other persons authorized by law to appear or act before it;

Section 60 (1)(l) the rule of the road on land or at sea or in the air;

Section 60 (1)(m) the ordinary course of nature;

Section (1)(n) the meaning of English words;

Section (1)(o) all matters of general or local notoriety;

Section (1)(p) all other matters of which it is directed by any written law to take judicial notice.

PRESTON JONES VS PRESTON

Preston went abroad and resided there for 9 months and therefore had no nuptial intercourse with
his wife. 3 months after he came back, a baby was born to his wife fully mature. He petitioned
for divorce on the grounds of adultery. Relying on the evidence that the ordinary course of
nature, human gestation was 9 months not 12 months or 3 months. The court held that the
matrimonial offence of adultery was not proved. In the words of the judges, “though the court
took judicial notice of the normal life of human gestation, it was not completely ruled out that
there could be abnormal periods of human gestation.

Re Oxford Poor Rate Case:

Burns V. Edmund

In this case Crichton J. halved the conventional award of damages for loss of expectation of life
to the wife of a deceased criminal after taking judicial notice of the fact that “the life of a
criminal is an unhappy one.”

FACTS NOT REQUIRING PROOF – JUDICIAL NOTICES

There are certain instances when facts need not be formally proved.

a. Facts Admitted in Civil Proceedings.

61. No fact need be proved in any civil proceeding which the parties thereto or their
agents agree to admit at the hearing, or which before the hearing they agree, by
writing under their hands, to admit, or which by any rule of pleading in force at the
time they are deemed to have admitted by their pleadings.
Provided that the court may in its discretion require the facts admitted t be proved
otherwise than by such admission.
..........
 The duty of the court is to resolve issues on which the parties disagree. If both parties
in a civil suit agree on certain facts, it is only common sense that the time of the court not be
taken up with requiring the parties to prove that about which there is no dispute. Indeed in
certain cases all the facts are agreed upon, and the only matter before the court is the
application of the relevant law.

One of the rules underlying the rule is the necessity for determination of the "facts in
issue" (s.3) so that the evidence can be directed towards the issues which must be determined
by the court, and not towards irrelevant matters. In NOKES at p. 31 it is said:-

"In civil proceedings the facts in issue are determined partly by the substantive law
regulating the claim, and partly by the written pleading of each party, which is served
on the other side before the hearing. Thus, in an action for breach of contract for the
sale of goods by sample, the plaintiff's allegations will usually depend upon the rule of
law that there is an implied condition that the bulk shall correspond with the sample in
quality, which includes state or condition.
His statement of claim .... will allege, among other things, the making of the contract, its
material terms, the quality of the sample and that the goods delivered in purported
performance did not correspond in quality with the admitted quality of the sample. The
written defence may admit all these allegations except the last. Then the principle fact in issue
will be whether the bulk correspond in quality with the admitted quality of the sample. The
paintiff's evidence will be mainly directed to this fact, though evidence may also be necessay to
prove the amount of the damages."

Every allegation of fact in the complaint, if not denied specifically or by necessary

implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be
admitted.

The procedures folowed by parties in civil suits are found in the Civil Procedure
(Revised) Rules, 1928, as amended, specifically as to the above in Orders VI and VII.
 The section does not apply to criminal procedings. Just before enactment of the
K.E.A. in 1963 the case of Selemani v. R., [1963] E.A. 442 (T) noted that the application of the
section to criminal proceedings had not been argued before the Court, however the inclusion
of the word "civil" in the section as enacted definately precludes its application.

b. Judicial Notice.

59. No fact of which the court shall take judicial notice need be proved.
........

60.(1) The courts shall take judicial notice of the following facts -
(a) all written laws, and all laws, rules and principles, written or unwritten, having
the force of law, whether in force or having such force as aforesaid before, at or after the
commencement of this Act, in any part of Kenya;
(b) the general course of proceedings and privileges of Parliament, but not the
transactions in its journals;
(c) Articles of war for the Kenya Military Forces;
(d) (deleted by L.N. 22/1965)
(e) the public seal of Kenya; the seals of all the courts of Kenya; and all seals which
any person is authorized by any written law to use;
(f) the accesson to office, names, titles, functions and signatues of public officers, if
the fact of their appointment is nofied in the gazette;
(g) the existence, title and national flag of every State and Sovereign recognized by
the Government;
(h) natural and artificial divisions of time, and geogtraphical divisions of the world,
and public holidays;
(i) the extent of the territories comprised in the Commonwealth;
(j) the commencement, continuance and termination of hostilities between Kenay
and any other State or body of persons,
 (k) the names of the members and officers of the court and of their deputies,
subordinate officers and assistants, and of al officers acting in execution ofits process, and also
of all advocates and other persons authorized by law to appear or act before it;
(l) the rule of the road on land or at sea or in the air;
(m) the ordinary course of nature;
(n) the meaning of English words;
(o) all matters of general or local notoriety;
(p) all other matters of which it is directed by an written law to take judicial notice.
(2) In all cases witin subsection (1) of this section, and alsoon all matters of public
history, literature, science or art, the court may resort for its aid to approriate books or
documents of reference.
(3) If the court is called upon by any person to take judicial notice ofany fact, it may
refuse to do so unless and until such person prduces any such book or document as it
considers necessary to enable it to do so.

If a fact is one of which the court may take judicial notice, as set forth in s.60, it need
not be proved (s.59) as defined in subs. (2) and (3) of s.3. Judicial notice merely dispenses with
proof, but the notice itself is not conclusive, and the fact may be disputed by the opposing
party.

SARKAR (pp.564 - 5) notes that the list of matters enumerated in s.60 is by no means
exhaustive, it being impossible to make a complete list.
"Moreover, the framer of the Act, Sir James Stephen himself, says in his Digest, `It
may be doubted whether an absolutely complete list could be framed, as it is
practically impossible to enumerate everything which is so notorious in itself, or so
distinctly recorded by pubic authority that it would be superfluous to prove it' (Steph.
Dig. notes to Art. 58)".

The following are illustrative of instances in which the courts in east Africa have taken
judicial notice of various facts:-
 Commissioner of Customs v. S. K. Panachand, [1961] E.A. 303, 318 (C.A.), see p. 30 for
discussion under s. 110 K.E.A.:-

It may be that the court might take judicial notice of the distance between Nairobi and
The Hague and infer that the bringing of a witness to Nairobi from the Hague in
relation to this particular case would be unreasonable."
Katikiro v. A.-G., [1959] E.A. 382, (C.A.).

"I think that the court is entitled to look at the whole agreement. Moreover, the 1955
Agreement was directed, by s. 2(1) of the Buganda Agreement Order-in-Council, 1955,
to be published in the Uganda Gazette and it was so published. I think that on that
ground we could take judicial notice of it: see the commentary on s. 57 of the Indian
evidence Act (from which s.55 of the Uganda Evidence Ordinance is taken) in
WOODROFFE & AMIR ALI'S LAW OF EVIDENCE (9th Edn.) at p. 489 and
PHIPSON ON EVIDENCE (9th Edn.) at p. 23 and p. 349."

Saleh Mohamed v. R., (1953), 20 E.A.C.A. 141. On laws in force:- (from p. 142).

"Two points have been taken on this appeal:-

(a) That the Magistrate wrongly took judicial noice of the fact that that sugar was
found in a prohibited area. ...

The Appellate Court below dismissedthe first point on the ground that a Court is
entitled to take judicial notice of all the Ordinances and Regulations enacted in Kenya. That
is a correct applicaation of section 57 (1) of the Indian Evidence Act which applies to Kenya,
viz:-

`The Court shall take judicial notice ... of all laws or rules having the force of law now
or therefore in force, or hereafter to be in force. ...'
 (Counsel) ... has argued, however, that declaration by the Governor of the Colony
made in pursuance of section 14 of the Sugar Ordinance is neither an Ordinance nor a
rule or regulation. this submission cannot succeed because of the definition of
`Ordinance' in section 2 of the Interpetation and General Clauses Ordinance (Cap. 1,
Kenya Laws, 1948). By that definition the term Ordinance is made to include `any
order, proclamation, rule, regulation, or by-law made under the authority of an
Ordinance: and in force'. It is impossible to argue that a notice published in the
Gazette which declares certain districts in the Colony to be prohibited areas for the
purposes of the Sugar Ordinance is not an Order issued by the Governor in pursuance
of the authority bestowed on him by section 14."

Note: this problem is alleviated by the words of s.60(1)(a) - "all written laws, and all laws,
rules and principles, written or unwritten, having the force of law ...". The Interpretation and
General Provisions Act (Cap. 2) no longer contains a definition or "Ordinance".

Also on judicial notice of a Government Notice see Thurman Singh v. R., (1951), 1
T.L.R.(R) 345. As to whether a court may take judicial notice of customary laws, see Chapter
of Determination of Customary Law, infra.

Saleh Mohamed's case on "geographical divisions":-

"Under section 57(a) a Court shall take judicial notice of the `geographical divisions of
the world' bt there is nothing else in that section which supports the Learned Judge's
proposition (that a Magistrate was entitled to take judicial notice of the location of all
towns and villages in Kenya.) We think, therefore, that it would have been better had
the prosecution produced evidence as to the whereabouts of the place ... because it was
ofthe eswence of this particular charge that the sugar had been found in the appellant's
possession at a place which lay within a prohibited area."

This view was, however, questioned by the Privy Council in Kuruma s/o Kaniu v. R., (1955),
22 E.A.C.A. 364, 366:-
 "A report of (Saleh Mohamed's) case was not before the Board and their Lordships
have no wish to criticize a decision that theyhave not read but with all respect to the
Court of Appeal it appears to them that this was perhaps an unduly narrow view to
take. We think it may well be that when an indictment alleges that a particular offence
was committed at a particular place and no challenge or issue is raised at the trial on
that point the cout may assume or at least take judicial notice that the place is situate
where the indictment states it is or that the maxim omnia praesumuntur rite esse acta
(that all things are presumed to have been done rightly) would apply".

On judicial notice of "notorious" trade usages see C.A. Harilal & Co. v. Standard Bank Ltd.,
[1967] E.A. 512,516 (C.A.), supra, p. 139.

Nazir Ahmed v. R., [1962] E.A. 345, 349 (C.A.)

"It is relevant thatthe part of Magadi Road in question is remote, unfrequented and at
a material distance from Nairobi, facts of which all Nairobi courtswould take judicial
notice."

Mwaitige v. R., [1961] e.A. 470 (C.A.) at pp. 474-475:-

"There was no evidence to show who produced the coffee, and likewise there was no
evidence to show where the coffe came from. It might, for all that is known, have come
from a district other than the Rungwe or Mbeya district. Learned Counsel has
submitted that the Magistrate was entitled to takejudicial notice of the fact that if it
hadnot come from the Mbeya district `the only place he could have got it is in the
rungwe district'. There is no evidence to this effect and we do not agree that this is a
matter of which judicial notice could be taken."
 Ryde v. Bushell, [1967] E.A. 817, 821 (C,.A.0, in a case involving the requirements for a
successful plea of Act of god, absolving a party from liability for damage suffered following
performance of part of an obligation:-

"The judge merely described the coffee as being washed away by `heavy rains'. He
made no finding as to its extraordinary nature, ... The defendant asks this court,
which is a court of an agricultural country, to take judicial notice of the norma
intensity of rainfa and of the eresive effect of heavy rain. I am prepared totake judicial
notice in a broad way of both these facts; but I cannot do so to the extent of coming to
a conclusion, unaided by any evidence, thatthe rainfall in question was of so
extraordinary a naturethat it could not reasonably have been foreseen and that no
precuations which the defendant could reasonably have taken would have prevented
or reduced the effect ofthe rain."

1. Appropriate books and documents of reference.

In addition to those instances involving books and documents which contain

statements made under special circumstances (see discussion of ss. 37 - 41 and the Chapter on
Documentary Evidence, infra), s.60(2), authorising the court to resort to appropriate books
and documents of reference and the proviso to s.63(2) are relevant.

63.(1) Oral evidence must in all cases bedirect evidence.

(2) ...

Provided that the opinion of an expert expressed in any treatise commonly offered for
sale, and the grounds on which such opinion is held, may be proved by the production of such
treatise if the author is dead or cannot be found, or has become incapable of giving evidence,
or cannot be called as a witness without an amount of delay or expense which the court
regards as unreasonable.

........
 A distinction must be made between situations where the court resorts to appropriate
books or documents of reference which, under s.60(3) it may refuse to do unless and until the
person calling upon the court to take judicial notice of a fact produces such book or document
as it considers necessary to enable it to do so - and the use of treatises as expert evidence.

The leading East African case on the subject is Sharmpal Singh v. R., [1960] E.A. 762
(C.A.). The Court, in determining the use to which medical treatises could be used under s.57
E.E.A.(s.60 K.e.A.) discussed the matter on p.770 as follows:-

"Under English practice and law of evidencethere is no doubt that medical textbooks
are not evidence per se, though if passages from them are put to a medical expert he
may refresh his memory from them or describe them as representing his own views.
(citing authority)...

Counsel for the appellant submitted thatunder the Indian Evidence Act ... greater
latitude is permitted. Section 57 and s.60 of the Act were referred to. Section 57 enumerates a
number of facts of which courts must take judicial notice and continues:
(quoting subs. (2) of the present s.60)

We do not think that this seciton, taken alone, would assist the appellant's argument.
As is stated in the commentary upon it in SARKAR ON EVIDENCE (9th Edn.), p.
492:

`But obviously, itcannot be meant that the court is to take judicial notice of all facts
mentioned in all books of public history, literature, etc. Only books of accepted or
recognized authority may be resorted to and for obtaining information regarding ohly
undisputed and notorious facts.'
On page 499 it is said:
 `S.57 however does not intend to make books or documents of reference themselves
evidence. What is obviously meant isthat the court may use the books of reference in
appraising the evidence given and coming to a right understanding the conclusion
upon it. It has been held that the court can dispense with evidence only of what may
be regarded as notorious facts of public history.'

The section is not intended, in our opinion, to enable or require a court, to solve for itselfby
rference to textbooks, difficult and perhaps controversial questions in medical or other
science." (emphasis added).

The Court went on to discuss the use of treatises under s.60, noting that I.e.A. had changed
the applicable English law:- (pp.770 -

"Section 60 of the Act however goes further and thereisunanimity among legal
textbook writers on the subject that it effects a change from the English law. It should be read
with s.45 which is as follows:-
(quoted)

Section 60 so far asit is relevant reads:

(quoted)

The proviso last quoted has effected a change from the principles followed under
English law. In WOODROFFE'S LAW OF EVIDENCE (9th Edn.), p. 516, is the following
passage:

`... The treatise in order to be admissible must be one commonly offered for sale, and
the author of it must notbe producible within the meaning of the section. Strictly the
burden of proving these facts will be upon the person who desires to give such treatise
in evidence. Section 45, ante, (s. 48 K.E.a.) refers to the evidence of living
witnessesgiven in court. this section makes scientific treatises and the like, commonly
offered for sale, evidence, if the author be dead, or under any of the circumstances
 specified in s.32 (s.33 K.E.A.), which render his poduction impossible or
impracticable.'"

The dangers of the over-free use of textbooks and treatises and their proper function was
stressed in the following passage from Grande Venkata Ratnam v. Corporation of Calcutta,
(1919), A.i.R. Cal. 822, 864, quoted by Court in Sharmpal singh's case on p. 772:-

"this section does not justify the court in treating the opinions or deductions of the
authors of such books as evidence in the case whether to supplement or rebut that
already given.
Section 60 however allows the opinion of experts expressed in any treatise commonly
offered for sale and the grounds on which such opinions are held, to be proved by the
production of such treatises in circumstances which no doubt apply in the present case.
The conclusion seems to be that books of reference may be used by the court on
matters (inter alia) of science to aid it in coming to a right understanding of and
conclusion upon the evidence given, while treatises may be referred to in order to
ascertain the opinions of experts expressed in any treatise commonly offered for sale
and the grounds on which such opinions are held, to be proved by the production such
treatise s in circumstances which no doubt apply in the present case. The conclusion
seems to be that books of reference may be used by the court on matters (inter alia) of
science to aid it in coming to a right understanding of and conclusion upon the
evidence given while treatises may be referred to in order to ascertain the opinions of
experts who cannot be called, and the grounds on which such opinions are held. In
these cases the direct evidence on the record, relating to the quality of the ghee in
question consists of the sworn testimony of the analyst, which stands alone and
uncontradicted. I think that we should be very careful to avoid introducing into the
case extraneous facts culled from textbooks, and also to refrain from basing a decision
on opinion, the precise applicability of which to the ghee in question is impossible to
gauge. this is an error which was strongly condemned by the Judicial committee of the
privy council in the case of Sajid Ali v. Ibad Ali. We may however usefully refer to
these booksin order to comprehend and appraise correctly the evidence of the expert,
 who has actually analyzed the ghee in question and gives on oath his opinion as to the
result of such analysis. It would, I think, be dangerous to bas thedecision of the court
solely on the evidence ofbooks whether for a conviction or an acquittal."

As to the definition of "treatise", the Court at p. 773 refered to the SHORTER EXFORD
ENGLISH DICTIONARY which defines the word as follows:-

"A book or writing which treats some particular subject; now always, one containing a
methodical discussion or exposition of the principles of the subject; ..."

and noted that the meaning was wide enough to include a book on a particular subject.

All passages relied upon by the defence in a treatise should be put to the expert witness
for the prosecution for his opinion; Singh's case, p. 773, noting the opinon of WOODROFFE,
J,. in Ratnam's case, supra.

Summary:

1. A treatise may be produced in court and passages there from will be admissible in
evidence, provided that they are relevant, if:
a. it is commonly offered for sale;
b. the author is dead, or not producible owing to the amount of delay or
expense which in the circumstances of the case the court considers unreasonable.

The burden of proving these facts shall be on the person who desires the introduction of the
evidence.

2. The function of treatises is to enable the court to understand and evaluate the
evidence in the case.