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TOPIC THREE
WEIGHT OF EVIDENCE:BURDEN AND
STANDARD OF PROOF
 Burden of proof
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 The phrase burden of proof is used to describe the duty

which lies on one or other of the parties, either to establish
a case or to establish the facts upon a particular issue.
 In the case of STATE OF MAHARASHTRA V
WASUDEO RAM CHANDRA KAIDALWAR AIR 1981
SC 1186 it was stated;
 “This expression means two different things. It means
sometimes that a party is required to prove an allegation before
judgment can be given in its favour; it also means that on a
contested issue one of the two contending parties has to
introduce evidence”
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 The principle governing the phrase “the burden of proof” has

been traced to Paulus , a Roman jurist, in the second century
A.D. and expressed by the Latin maxim ei qui affirmat non ei
qui negat incumbit probatio, that is, he who asserts a matter
must prove it, but he who denies it need not prove it.
 It is also derived from the Latin phrase ‘Onus Probandi’, which
means the burden of establishing a case, and also the burden of
introducing.
 The kinds of burden of proof in evidence are basically of two
types;
 Legal or persuasive burden of proof
 Evidential burden of proof
 Persuasive burden of proof
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 There is an obligation on one party to convince the

tribunal or the court of truth of some proposition of
fact which is in issue and which is vital to his case.
 This obligation is what is termed as persuasive
burden.
 The general rule is that he who asserts must prove,
whether the allegation be an affirmative or a
negative one, and not he who denies.
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 The party failing to discharge this burden will

fail in the whole or some part of the litigation.
 In the case of JOSEPH CONSTANTINE
STEAMSHIP LINE LTD V IMPERIAL
SMELTING CORPORATION LTD
[1942] A.C 154 at p.174 it was emphasized
that;
“It is an ancient rule founded on
considerations of good sense, and it should
not be departed from without strong
 Evidential burden of proof
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 Evidential burden is an obligation that shifts between parties

over the course of hearing or trial
 It is not constant, it shifts as soon as the parties adduce sufficient
evidence to raise presumption in his favour.
 It is sometimes known as provisional or tactical burden of proof.
 Abbott, C.J had this to say in the case of R V BURDETT
[1820] 4 B. & Ald. 95, at p.161 in as far as evidential burden
is concerned;
 “No person is to be required to explain or contradict, until enough
has been proved to warrant a reasonable and just conclusion
against him; ”
 Standard of proof
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 Standard of proof is the level of proof required in a

legal action to convince the court that the given
proposition is true.
 If it is in criminal cases, beyond reasonable doubt
 If it is in civil cases, on balance of probabilities or
preponderance of probabilities
 On balance of probabilities
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 The preponderance of probability or balance of

probability has to be understood different from the
mathematical context of the term “probability”
 In the case of J S (A MINOR) [1981] Fam 22 it was
stated;
 “The concept of ‘probability’ in the legal sense is certainly
different from the mathematical concept; indeed, it is rare to
find a situation in which the two usages co-exist although,
when they do, the mathematical probability has to be taken
into the assessment of probability in the legal sense and
given its appropriate weight”
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 This standard of proof is met if there is likelihood that

the proposition is true is more likely than it not being
true.
 Effectively, the standard is satisfied if there is more than 50%
chance that the proposition is true.
 In the case of MILLER V MINISTER OF PENSION
[1947] 2 ALL ER 372 at 373-374 Lord Denning
described it simply as “probable than not”.
 If the evidence is such that the court can say we think it more
probable than not, the burden is discharged. But if the
probabilities are equal, it is not.
 Beyond reasonable doubt
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 Beyond reasonable doubt means that the proposition must be

proved to the extent that there is no reasonable doubt in the
mind of a reasonable person.
 There can still be doubt but only to the extent that it would be
unreasonable to assume falsity of the preposition.
 In the case of WALTERS V R [1969] 2 A.C 26 the court stated
that a reasonable doubt is a quality and kind of doubt which
when you are dealing with matters of importance in your own
affairs you allow to influence you in one way or the other.
 The extent of burden on the prosecution is great while on part of the
accused is only to cast that doubt on reasonable probabilities.
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 It is the duty of the prosecution to prove the case

beyond reasonable doubt.
 In the case of WOOLMINGTON V D.P.P [1935]
A.C.462 Lord Sankey, L.C had this to say;
 “…it is the duty of the prosecution to prove the prisoner’s
guilt,…No matter what the charge or where the trial, the
principle that the prosecution must prove the guilt of the
prisoner is part of the common law of England and no
attempt to whittle it down can be entertained”
 This is what is termed to as the “golden thread” or the
“Woolmington principle.”
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 That common law position is part of our law and it

was emphasized in the case of JONAS NKIZE V
R [1992] TLR 213 where Katiti, J stated that;
 “the general rule in criminal prosecution that the onus
of proving the charge against the accused beyond
reasonable doubt lies on the prosecution, is part of our
law, and forgetting or ignoring it is unforgivable, and is
a peril not worth taking”
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 The prosecution cannot simply rely on the weakness of the

defence case to prove their own case.
 It is also fatal to the proceedings where the court proceed to
convict by relying on the weakness of the accused defence.
 The Court of Appeal in Abdul Athuman v R, Crim. Appeal
No. 99 of 2000 (Unreported) emphasized this by stating that;
 Most importantly, the court was not entitled to use that weakness
in the defence case as a basis for finding the appellant guilty of the
offence charged. Read also Nassoro s/o Mohamedi v. R. [1967]
HCD n. 446. Bawari s/o Abedi v. R. [1967] HCD n. 11
 Exceptions to prosecution’s duty
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 Not in all cases the burden of proof lies on the

prosecution
 The exceptions are;
 In the criminal dispute where the issue is
concerning the property which is suspected to be
stolen and where the doctrine of recent
possession is at issue.
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 Inthe case of MARUZUKU HAMISI v REPUBLIC

[1997] TLR 1it was stated that;
 “Once the accused has been found in possession of
property which may reasonably be suspected of
having been stolen or unlawfully obtained, then the
burden shifts on him of satisfying the Court as to
how he came by the same. But the burden is not a
heavy one”
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 Where the accused raises a defence of alibi, insanity,

intoxication, mistake of fact etc
 The Court of Appeal in Majuto Samson v R, Crim.
Appeal No.61 of 2002 stated that a person is presumed
to be of sound mind, and to have been of sound mind at
any time which comes in question, until the contrary is
proved… In regard to insanity, it is settled law that the
burden of proving insanity is on the accused on a balance
of probabilities and not merely to raise a reasonable
doubt as to the sanity of the accused.
 For similar position see Nyinge s/o Suwatu V. R (1959) EA
974 and Mbelukie V. R (1971) EA 479; Agnes Doris Liundi
V.Republic (1980) TLR 46.
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 Where the offence is one of strict liability

 In immigration cases, where the issue is on
citizenship of the applicant
 See cases of RE-ABDALLAH SALIM ABD-
SALAAM [1967] HCD n.174 and JOHN
SAPULI AND TWO OTHERS v RAJABU A.
ATHUMANI MROPE AND THE AG [1985]
TLR 148
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 However, when such burden shift on the accused

person, it is not heavy as that placed on the
Prosecution.
 See the case of of HASSAN MADENGE V R
Criminal Appeal No 50 at 1987 (unreported)
where the court said that:
 “An accused's story does not have to be believed. He is
only required to raise reasonable doubt, that is to say, his
explanation must be within the compass of the possible
in human terms”
 Conclusion
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 The standard of proof in criminal cases is therefore different

from that required in civil cases
 Discharge of burden of proof in any of the proceedings does
not dispense with that duty in the opposite proceedings
 in the case of IBRAHIM MOHAMED V MWAJABU
JUMA(1972) LRT n 236
 The appellant filed a suit against the respondent for maintenance,
the primary court entered judgement in her favour. Dissatisfied
with the decision and order of the primary court the applicant
appealed to the district court. He was again defeated, hence he
appealed to the high court.
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 Before the high court the applicant argued that, he

was not responsible for the maintenance of the
respondent, in relation to alleged assault he denied
assaulting the respondent and he referred the
decision in primary court in which he was charged
with assaulting the respondent but he was found
not guilty.
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 The High court stated that:

 “the fact that the appellant was acquitted on the
charge of assault does not necessarily mean that the
appellant did not assault the respondent. He may have
done so but there may have been no sufficient evidence
to prove beyond reasonable doubt that he did, and
hence his acquittal. The appellant cannot therefore rely
on the acquittal as a basis in this civil case because the
burden of proof in criminal cases is totally different
from that in a civil case. Evidence that may fail to
prove or support a criminal charge may be quite
adequate to prove a civil action.”
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 In the case of Philip Mkama & Others v R [1970]

HCD 93 the court stated that the burden and standard
of proof in criminal and civil cases are different.
 Acquittal in the former does not affect a claim on the
same fact in the latter
 Read also the case of Samuel Silinga v R [1993] TLR
149 on the issue of shifting burden of proof to an
accused person
 Provisions relating to burden of proof are ss.110-122 of
Cap 6 R.E 2002