Papers by Duncan Kiboyye Okoth-Yogo
Moi University Lectures, B.A. Penology, Security and Administration Program, School of Arts & Social Sceinces, 2024
Law of evidence define facts that are useful in validating legal assertions as distinguished fro... more Law of evidence define facts that are useful in validating legal assertions as distinguished from those that are excluded. The law recognizes the facts that are omitted from proof or that which may be proved. It proceeds from exclusionary rules than inclusionary provisions. The subject matter includes how the facts may be proved, whether by oral or documentary evidence, by which these facts may be proved, standard and burden of proof. Generally in legally cases, the standard of proof in criminal is beyond reasonable doubt while in civil matters the standard of proof is on a balance of probability. Law of evidence is ‘Lex Fori'. It is governed by the laws of country whereby the proceedings take place.
The Law of Evidence is concerned with facts of a given case and means of proving them. These include state of facts or relation of things capable of being preserved by senses, mental condition of which any person is conscious, any material object, and material facts like demeanor of a person. The state of thing must therefore state the relation which these facts bear to each other. Ordinary fact is anything which has been said or done or which can be presented by any of the five senses.
Facts open to proof are facts in issue, relevant facts and collateral facts. Prof. Cross opines that facts in issue are those facts, which the plaintiff in a civil case or prosecution in a criminal case must establish in order to be successful. They also include any fact a defendant or an accused must establish to succeed in defense. Stephens digest on law of evidence provides that fact is relevant to another fact if the former fact render the existence or non-existence of the later fact more or less probable. It can therefore be said to be genuine issues of the trial. Collateral facts are of three kinds. First are those facts that affect the competence of a witness. Competence of witness refers to the ability of a witness to testify. Secondly, facts that affect the credibility of a witness. Thirdly, facts, which must be proved as, condition precedent to the admissibility of a certain items of the evidence.
Moi Univetrsity Department of History, Political Science and Public Administration, 2024
INTRODUCTION
Environment is the aggregate physical setting within which the systems of the univer... more INTRODUCTION
Environment is the aggregate physical setting within which the systems of the universe relate (Okidi, 2008). Enduring interactions between its components such as the anthropogenic sphere, land, water, space, atmosphere, climate, sound, odour, taste, biodiversity, aesthetics, inter alia, are crucial for life (GoK,1999; Sec 2: Okidi (2008). The environment is a critical factor in human civilization. Diplomacy, dealings between governments of independent states, is an integral part of international relations. It encompasses the means of managing negotiations among international personalities. States, among other international personalities, do engage in it to deal with the environment. Pertinent international relations is conducted through diplomatic excursions and can be looked at from two prisms. Firstly, states’ territoriality is not only in reference to their very environmental spaces but also the importance of underscoring their sovereignty. So the environment is part of sovereign states’ rationale within a backdrop of global community. Secondly, the environment is one of the reasons why sovereign state entities must out of necessity, and perpetually, engage in mutual dialogues and agreements amongst them. Therefore, international relations, conducted through mutual environmental diplomacy, is essential.
International relations emanate from states’ foreign policies as modified through actual diplomatic exertions founded on their foreign policies. The conception and execution of foreign policy is one of the primary state functions. States strive to make the best advantage of their involvements in international relations. So, novel foreign policy formulation and diplomacy, making pertinent goals and resources work for a country, are an integral part of statecraft. Further, it is acknowledged that one of the greatest outcomes of diplomacy has been the enactment of various laws, both international and domestic. For example international treaties are direct products of diplomacy. The rights and obligations of states more often than not, emanate from established principles in international law. These are useful in bestowing rights on third party states and citizens. In practice, international law regulates a wide spectrum of international relationships in the economic, social, political and environmental arena.
The aim of this discussion is to assay the emanating history of Kenya’s foreign policy-environmental diplomacy interactions since 1963. Kenya’s foundation was the integration of various cacophonous polities from 1885 under a British colonial enterprise. It became an independent country in 1963. At that point it joined the international community of nations, replete with both the inherited and newly perceived international environmental agenda. Kenya’s independence also coincided with a period of growing importance of the environment as a subject of international cooperation. As a former colony and developing country, Kenya has tended to join other third world countries in bringing up their pertinent world view in environmental diplomacy.
Diverse subthemes have emerged under environmental diplomacy, such as pollution, biodiversity conservation and use, climate change and the human ecology-resources deployment node. The most ubiquitous diplomatic objective over all history has been about health and safety concerns. Myriad international dialogue, especially linking health and safety to good neighborliness and international cooperation, have place to grapple with them. A subject such as covid19, today much discussed in various diplomatic fora, does not only come out as a medical issue but also an environmental concern. The environment also impact on international security. Countries have even fought over natural resources. So are the economic ramifications, gleaned through the efficiency matrix. Other objective areas are the pertinent advancement of science and technology, human rights and community stability, humanitarian assistance, aesthetics and recreation, sustainable development, among others. Management tools such as command and control schemes, novel technological adaptations, environmental assessments, planning and mitigations, models such as carbon credit trade under the climate change, procedural agenda, among others, have been employed.
According to Kiss (1992), international environmental management as we know it today is largely attributed to the aftermath of the Second World War. The post war reconstruction led to unprecedented global economic development. This also exerted a lot of pressure on ecological stability. Maurice Strong (2001) opined that ‘the essential theme of the modern age is interdependence of all the life elements, which sustain life on the planet.’ This symbiosis includes that of ‘man with those elements, of the natural system with man’s needs and aspirations and most of all man with man’, he continued.
IJED Working Paper Series, 2020
Metaphysics, International Medical Research Ethics Program, Moi University's School of Medicine, 2014
Logic is ‘the science of reasoning, proffering proof, thinking, inference or chain of reasoning’.... more Logic is ‘the science of reasoning, proffering proof, thinking, inference or chain of reasoning’. Ontology is ‘the branch of metaphysics dealing with the nature of being’. It is about the notion of reality and the search and taxonomic arrangement of knowledge about phenomena. Both logic and ontology are an integral part of metaphysics which refers to being from their physical expression and beyond. Metaphysics is the branch of philosophy that examines the nature of reality through logic. It is concerned with the relationship between mind and matter, substance and attribute, fact and value. One of the questions that would be asked is why there is a being instead of nothing? If there is no being, there is no thought because there is no one to think of it. Metaphysics-medical research link is with regard to causality. How health research knowledge is generated is crucial. The “how” here includes research procedures, dealing with the human element of research. The nexus between medical research, causation, ethics and law is crucial.
Medical research can be classified into three areas. These are basic research, applied research, and translational research. Another form of categorizing medical research is in terms of the assessment of new management for safety and efficacy and clinical trials, on the one hand and all other research that contributes to the development of novel techniques and preclinical research, on the other. Translational research encompasses two areas. One is the ‘the process of applying discoveries generated during research in the laboratory, and in preclinical studies, to the development of trials and studies in humans’. The second is about research for advancing “best practices in the community”. All these forms of research do have ethico-legal ramifications.
Ethics refer to how people elect to interrelate with others. It also circumscribes what is good for both the person and community. Further, it ascertains the character of duties that people owe themselves and others in community. Law on the other hand can be a crystallization of ethical values of a society. That is not to mean that law and ethics mean the same thing. In fact myriad acts that are unethical are not necessarily forbidden by law. However, a lot of laws have been ethical issues first before they become legal issues.
ADMINISTRATION AND PUBLIC MANAGEMENT REVIEW 22/2014, Jul 1, 2014
Chelang’a James KIPROP1
Duncan Kiboyye OKOTH-YOGO2
Kariuki G. CHARAGU3
Abstract : Performanc... more Chelang’a James KIPROP1
Duncan Kiboyye OKOTH-YOGO2
Kariuki G. CHARAGU3
Abstract : Performance contract (PC) is a negotiated agreement, arrived at after a meeting of minds, between a government and a respective ministry, department, agency or a public officer, clearly specifying short-term implementation goals, obligations and responsibilities between the two parties (GOK, 2004a) . It is an integral part of both bureaucratic law and management renewal in the public services, useful in identifying priorities and required inputs, for improved service delivery. The study was an endeavor to establish the employees’ perception of the relevance of PC as a tool for improving service delivery, its impact in the ministry of lands and the challenges it encounters. It was guided by the agency theory. Data was collected from 91 respondents who were employees in the department of land adjudication and settlement at its Nairobi headquarters, 16 respondents from Thika and 13 from Machakos districts respectively. Secondary data was sourced from existing literature after which descriptive statistics was proffered. The study established that employees think positively of PC as useful in advancing effective governance but face the challenge of inadequate resources and lack of ownership. The study recommends changes in the fiscal allocation regulations by providing for increased budgetary provisions for PC implementation programs and increased rewards based on performance in order to improve both quantity and quality of output.
Keywords: Performance Contracts; Agency Theory; Employee; Perceptions.
JEL: R38; R52; R58.
IJED Institute, Working Paper Series, No 1 of 2013, Nov 12, 2013
The paper is an analysis of the Bill of rights as provided for in the Kenyan constitution. A bill... more The paper is an analysis of the Bill of rights as provided for in the Kenyan constitution. A bill of rights is basically a legal enactment of the human rights- civic and political, social and cultural, economic, group, minority and environmental rights. In Kenya this is duly fulfilled under chapter four of the constitution. It’s replete with safeguards against human rights abuse and legitimated limitations. The bill of rights does not create these human rights. Rather it reiterates them and also provides a sovereign pathway for drawing their parameters from a social contractarian perspective. Together with other doctrines, the bill of rights makes up the 2010 constitutional dispensation. They also proffer inkling into the evolution of the Kenyan legal system. Some of these other doctrines are sovereignty of the people, checks and balances, public participation and perspicuity, multi-party democracy, government of effective and ethical mechanisms, environmental sanctity and sustainable development, rule of law, constitutional supremacy, protection and enhancement of community values and stability, among others. If one looks at the constitution as national covenant between the people of Kenya among themselves and between the people on the one hand and the government on the other, bill of rights chapter is the crystallization of the core demands of the people from the government. The paper is basically a beginning of the bill of rights studies as an integral part of the Kenya’s legal system. As the law grows through other constitutional developments, international law, legislative and judicial interpretations, more incisive scholarship will be necessary.
By Kiboyye Okoth-Yogo
Working Paper Series, IJED Institute, 2015
What does the expression “law”... more By Kiboyye Okoth-Yogo
Working Paper Series, IJED Institute, 2015
What does the expression “law” mean to a typical Kenyan? How does the expression “law” relate to the Kenyan legal system? These are the two questions this paper seeks to answer. The paper is also sentient of the understanding that law is as old as human society. The need for law has been crucial as communal glue. Both the democratic and authoritarian regimes claim their legitimacy from certain legal authority. Whether due to fear of metaphysical abyss, absurdities of self-help, need for conserving socio-economic goods, or keeping in place a government of effective mechanisms, among other things, law is extant. No wonder, in spite of the subjugationist foundations of the Kenya’s legal system, law having been established as tool for pacifying the Kenyan communities into accepting the derogatory colonial edifice, independence could only be a promise to progressively engender changes. The idea of dissipating the basic colonial legal foundations, that integral part of the colonialism, was never even considered. It had assumed a significant place in the carved up Kenyan nation-state society that could not just be fancied off. Another way of looking at law is through its seamless-chaos. This is crystallized both by its seemingly orderly instrumentation and erratic interactions between different cultural elements, often drawing from the deepest ends of every discipline. Occasionally one catches glimpses of oscillation between its divergent regional, ideological and cultural dimensions-North-South divide, social and economic eccentricities, communitarian ethos versus unmitigated free enterprise among others. However such visualizations are more of flashes than clear trajectories. About one hundred and thirty years ago Kenya neither existed as a nation nor state. In its place were different national configurations exemplified in different sizes and customs characterized by unique norm structures, processes and socio-legal systems. Custom as used here refer to the conventional pattern of behavior that exist within a particular socio-political setting. Customs in these nations, what the Luo call piny, headed by a ruoth, or the Nandi Pororiet or the Wanga Kingdom, among others, always acquired the force of law as they became the undoubted rule by which a variety of rights, entitlements, and responsibilities were regulated between members of a polity. Lord Denning in his enunciation of the English meaning of customary law asserted in R. v Secretary of State for Foreign and Commonwealth Affairs that “these customary laws are not written down. They are handed down by tradition from one generation to another. This is similar to the meaning of Suba, Luo, Kikuyu or any other African customary law. Such customs “are well established and have the force of law within the community”. However, like any other African colonial enterprise, this changed, especially after the Berlin conference on the partition of Africa by European powers, which ended in 1885. By 1920, Kenya had assumed its present status. It was to remain under British rule until 1963. Within the short colonial period, lasting less than one hundred years, Kenya had become a flash point for legal experimentation and chaos. A new legal system, largely denigrating the traditional set up was established. What has remained of the old legal systems and residually infused within the Kenyan legal system is collectively referred to as the African Customary Laws applied to matters such as marriage, divorce, traditional authority among other tangential issues.
Law is as old as human society. The need for law has been crucial as a communal glue. Both the democratic and authoritarian regimes claim their legitimacy from some legal authority. Whether due to fear of metaphysical abyss, absurdities of self-help, need for conserving socio-economic goods, or keeping in place a government of effective mechanisms, among other things, law is extant. No wonder, in spite of the subjugationist foundations of the Kenya’s legal system, law having been established as tool for pacifying the Kenyan communities into accepting the derogatory colonial edifice, independence could only be a promise to progressively engender changes. The idea of dissipating the basic colonial legal foundations, that integral part of the colonialism, was never even considered. It had assumed a significant place in the carved up Kenyan nation-state society that could not just be fancied off. Another way of looking at law is through its seamless-chaos. This is crystallized both by its seemingly orderly instrumentation and erratic interactions between different cultural elements, often drawing from the deepest ends of every discipline. Occasionally one catches glimpses of oscillation between its divergent regional, ideological and cultural dimensions-North-South divide, social and economic eccentricities, communitarian ethos versus unmitigated free enterprise among others. However such visualizations are more of flashes than clear trajectories. About one hundred and thirty years ago Kenya neither existed as a nation nor state. In its place were different national configurations exemplified in different sizes and customs characterized by unique norm structures, processes and socio-legal systems. Custom as used here refer to the conventional pattern of behavior that exist within a particular socio-political setting. Customs in these nations, what the Luo call piny, headed by a ruoth, or the Nandi Pororiet or the Wanga Kingdom, among others, always acquired the force of law as they became the undoubted rule by which a variety of rights, entitlements, and responsibilities were regulated between members of a polity. Lord Denning in his enunciation of the English meaning of customary law asserted in R. v Secretary of State for Foreign and Commonwealth Affairs that “these customary laws are not written down. They are handed down by tradition from one generation to another. This is similar to the meaning of Suba, Luo, Kikuyu or any other African customary law. Such customs “are well established and have the force of law within the community”. However, like any other African colonial enterprise, this changed, especially after the Berlin conference on the partition of Africa by European powers, which ended in 1885. By 1920, Kenya had assumed its present status. It was to remain under British rule until 1963. Within the short colonial period, lasting less than one hundred years, Kenya had become a flash point for legal experimentation and chaos. A new legal system, largely denigrating the traditional set up was established. What has remained of the old legal systems and residually infused within the Kenyan legal system is collectively referred to as the African Customary Laws applied to matters such as marriage, divorce, traditional authority among other tangential issues.
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IJED-Institute Working Paper Series No. 4 of 2014, Jan 19, 2014
"ABSTRACT
The judiciary, alongside the legislature and the executive, is one of the three branch... more "ABSTRACT
The judiciary, alongside the legislature and the executive, is one of the three branches of government. Its basis, alongside the other arms of government is the doctrine of checks and balances, founded on separation of powers, limitation of powers and public space in governance. All these three are a fundamental guarantee of the independence of the judiciary. The Kenyan constitution, and the rule of law in its entirety, entail that it be independent from the other branches of government. This article examines judicial independence and the aspects which define it. It traces the Kenya judicial foundations in the vestiges of colonial edifice. The current constitutional provisions are also analyzed.. This paper is justified for the need to come to grips with adequate philosophical interrogation of the rationale for judicial independence is crucial, so is a conceptual model that will help, to articulate policies and discern pertinent response mechanisms.
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Strategic Environmental Assessment [SEA] is a methodical process for anticipating the significanc... more Strategic Environmental Assessment [SEA] is a methodical process for anticipating the significance of decisions taken for purposes of ensuring that environmental considerations and alternatives are addressed on parity with economic and social factors in policies, plans and programs [PPP] for developments. Its primary justification lies in the pursuit for advancing the crystallisation of people’s welfare and sustainable development through safe, efficient, and equitable utilisation of the environment. When looked at from an environmental assessment paradigm, SEA can counteract some of the limitations of Environmental Impact Assessments [EIA] as they provide room for the examination of actions capable of alleviating the negative impacts that transcends specific projects. Although EIAs are now firmly rooted in Kenya, they take place after many strategic decisions have been made and project details already drawn up with irreversible decisions taken such as land acquisition, selection of the development proposal and financial commitments made. Whereas the provisions for environmental impact assessment are explicitly provided for under Environmental Management and Coordination Act [EMCA], the explicit provision for SEA comes as an afterthought, contained in a subsidiary legislation where it is a discretionary requirement. This paper, which intentionally excludes cross border environmental assessment issues, discusses the apparent legal lacuna which negates the benefits that would have accrued towards fostering communitarian values in contrast to unrestrained use of the environment. The paper recommends that for SEA to be effectual as an integral part of fulfilling Kenya’s environmental law objectives, it should either be explicit, or the definition and the provision of EIA be expanded to include assessment of not only projects but also plans, policies and programs from a universal perspective.
PLANT GENETIC RESOURCES FOR ENVIRONMENTAL MANAGEMENT IN KENYA: EVOLVING LEGAL PARADIGMS
The paper is premised on the knowledge that plant varieties can be developed, by utilizing vari... more The paper is premised on the knowledge that plant varieties can be developed, by utilizing various genetic materials, which adjusts to varying environmental conditions. This is extremely useful for the war against climate change, pollution, desertification, and protection of water resources. With an equitable benefit sharing arrangements, technological transference pertaining to genetic resources can be a harbinger of economic gains with supplementary benefits to environmental management. This study conducted to examine the effectiveness of our legal system in addressing the sustainable development of genetic resources established that the existing laws and policies are haphazard and inadequate. The critical importance of guaranteeing universal access to, equitably sharing in the benefits from, and conservation of these resources are generally overshadowed by other issues in a country subjugated by quick-fix political and financial perspectives. An examination of government policy papers, environmental assessments, the entire legal positivism, including the constitution, statutes, common and equity, the decision of the judges, inter alia, reveal a profound casualness and abandon in protection of plant genetic resources. This paper therefore makes recommendations for proactive formulation of laws that would guarantee the availability of and universal access to genetic diversity which is critical to confronting these fundamental challenges.
ENVIRONMENTAL SURVEILLANCE SYSTEMS AND LEGAL CONSIDERATIONS FOR THE MANAGEMENT OF WATER RESOURCES.
ENVIRONMENTAL SURVEILLANCE SYSTEMS AND LEGAL CONSIDERATIONS FOR THE MANAGEMENT OF WATER RESOURCES... more ENVIRONMENTAL SURVEILLANCE SYSTEMS AND LEGAL CONSIDERATIONS FOR THE MANAGEMENT OF WATER RESOURCES.
BY
Emily Damaris Mateche
Duncan Kiboyye Okoth-Yogo
ABSTRACT
Water pollution is one of the major challenges to sustainable management of water resources in Kenya. Using environmental surveillance systems that include the Geographic Information Systems [GIS] and remote sensing, the occurrences and etymology of these pollutions can be established. They have been used in courts and in environmental assessments to advance environmental justice. . As a forensic tool in law enforcement, they enable the ‘availability of unique synoptic views of the terrain’.
The paper is justified by the rationale that despite the fact that Environmental Management and Coordination Act [EMCA] prohibits the discharges of any poison, toxic substances, noxious or obstructing matter, radioactive wastes or other pollutants into the aquatic environment unless under the procedure laid down by the relevant regulations such pollutions continue unabated. The water resources are continually contaminated by human and other animal wastes, toxic chemical, metals and oils. The sources of the pollutants are usually the Industries, sewage systems and agricultural chemicals and wastes. Part of the problem is that the existence of the law is not backed by an effective evidence system.
The paper recommends the direct legal provision for recognition, availing and the use of environmental surveillance systems in the management of water resources. It would then be easy to capture, store and use evidentiary useful information for environmental accounting, audit and dispute resolution, through establishment of water pollution sources and etymologies.
Key Words: Water; Pollution; Evidence; Remote Sensing; Geographic Information Systems [GIS]
PUBLIC PARTICIPATION AND ENVIRONMENTAL JURISPRUDENCE IN KENYA: EDUCATION FOR SUSTAINABLE DEVELOPM... more PUBLIC PARTICIPATION AND ENVIRONMENTAL JURISPRUDENCE IN KENYA: EDUCATION FOR SUSTAINABLE DEVELOPMENT PARADIGM
Duncan Kiboyye Okoth-Yogo
John O. Oluoch
ABSTRACT
Public participation is today an integral part of Kenya’s legal positivism out of the accepted wisdom that the authorities in charge of environmental management will do better if they are exposed consistently to public views. In addition, the public is likely to feel better and be more positively won over to accept outcomes if they are invited to express their opinions and facts. Education is an essential tool for proffering better public participation as it not only eases the communication and understanding of its rationale but also augments the potency of indigenous knowledge, science and technology, international comity and national goals for sustainable developments. A study of the Environmental Impact Assessments, Environmental Audits, Public Interest Litigation and Public Participation as provided for under the Environmental Management and Coordination Act of Kenya (1999), conducted between 2003 and 2008, has shown that there is a profound nexus between public participation on sustainable development issues on the one hand and higher learning on the other. A further study on the contents of the schools and colleges curricular also reveal that sustainable development is not adequately reflected as a vital component of the pedagogies. Third, the laws on public participation on environmental assessments are provided as if the levels of education are immaterial in carrying out effectual appraisals. Further to the foregoing, the provision for public participation under EMCA only envisages a public response to decisions which are already made. The law is silent on public participation at the project or policy planning phases. The principle of public participation is therefore rendered deficient. It has in many cases led to post decision citizens protests and costly litigation processes. The study has shown that an educated citizen involvement at the inception of projects and policies not only promotes environmental management resourcefulness but also justice. The paper recommends legal reforms that reflect the exigency for exponential environmental education for better informed choices. This can be done by way of civic education, continuing environmental education for relevant professionals and the need to reorient curricular at all levels to include a thorough understanding of sustainable development matrix. These are considered crucial for environmental justice.
IJED Working Paper Series
INTRODUCTION
The British Raj’s appropriation of lands that belonged to the natives continues to ... more INTRODUCTION
The British Raj’s appropriation of lands that belonged to the natives continues to under-score land-holding matrix in Kenya. They are steeped in “historical injustices”, a euphemism for colonial and post-colonial denigration of human rights and communities’ stability. The British colonialists acquired lands in Kenya through fraudulent agreements, false pretences at sovereign legitimacy and forceful pacification of the “primitive ethnic nationalities”. Colonial subjugationism was premised on a profound nexus between fading western feudalism and the then nascent capitalism. It eventually crystallized in a social system in which the colonizer controlled both the means of production and ideological dictum. The means of production was exemplified by large scale farming, mining, tourist-centric conservancies, all based on a land-holding system akin to feudalism. When the Crown Lands Ordinance of 1915 declared all ‘waste and unoccupied lands’ as the property of the British government, and subject to the governors powers of alienation, the stability of Kenyan communities who had been pushed, together with animals to the reserves from lands they had hitherto controlled communally, were disrupted by polices that were meant to ascertain they did not own the means of production. Africans were definitely part of the colonial equation. However theirs was to provide a subservient support for the same. For example, the provision of cheap labour was their domain. Then the 1963 independence was tipped over in favour of retaining the status quo. Only this time the nucleus of subjugation was the up-and-coming local bourgeoisie. The paper is a historical analysis of the profound interaction between the evolution of land law and justice in Kenya. What is the history? Is the rights system in the inherited model a better way than the traditional communal land-holding system? The paper asserts that the subjugation of Kenyans and forcefully ushering them into global capitalism where they were bowed into embracing subservience and the independence that refused to yield are the bane of the land-holding matrix. Then, it remains to be seen if the changes wrought, especially under the 2010 constitutional dispensation are far reaching enough.
Teaching Documents by Duncan Kiboyye Okoth-Yogo
2024 Kiboyye's Penology' Security & Administration Lectures, Moi University's School of Arts & Social Sciences, 2024
Law of evidence define facts that are useful in validating legal assertions as distinguished fro... more Law of evidence define facts that are useful in validating legal assertions as distinguished from those that are excluded. The law recognizes the facts that are omitted from proof or that which may be proved. It proceeds from exclusionary rules than inclusionary provisions. The subject matter includes how the facts may be proved, whether by oral or documentary evidence, by which these facts may be proved, standard and burden of proof. Generally in legally cases, the standard of proof in criminal is beyond reasonable doubt while in civil matters the standard of proof is on a balance of probability. Law of evidence is ‘Lex Fori'. It is governed by the laws of country whereby the proceedings take place.
The Law of Evidence is concerned with facts of a given case and means of proving them. These include state of facts or relation of things capable of being preserved by senses, mental condition of which any person is conscious, any material object, and material facts like demeanor of a person. The state of thing must therefore state the relation which these facts bear to each other. Ordinary fact is anything which has been said or done or which can be presented by any of the five senses.
Facts open to proof are facts in issue, relevant facts and collateral facts. Prof. Cross opines that facts in issue are those facts, which the plaintiff in a civil case or prosecution in a criminal case must establish in order to be successful. They also include any fact a defendant or an accused must establish to succeed in defense. Stephens digest on law of evidence provides that fact is relevant to another fact if the former fact render the existence or non-existence of the later fact more or less probable. It can therefore be said to be genuine issues of the trial. Collateral facts are of three kinds. First are those facts that affect the competence of a witness. Competence of witness refers to the ability of a witness to testify. Secondly, facts that affect the credibility of a witness. Thirdly, facts, which must be proved as, condition precedent to the admissibility of a certain items of the evidence.
Philosophical perspectives
The philosophy of the common law of evidence is grounded in its adversarial system, which balances the pursuit of truth with procedural fairness to protect the rights of the accused. Distinct from the inquisitorial approach of civil law systems, the common law model relies on exclusionary rules enforced by a neutral judge to manage evidence presented to the court.
Truth ought to be balanced with fairness. A foundational tension exists between the pursuit of an accurate, epistemic, outcome and the protection of fair trial rights. While the ideal outcome is that the guilty are convicted and the innocent are acquitted, the common law prioritizes protecting the innocent and maintaining the integrity of the process, even at the cost of excluding relevant information. The European Court of Human Rights, for instance, has reinforced this balance by limiting the use of unreliable evidence, such as unexamined statements used as the sole basis for a conviction.
An adversarial process is the corner stone of common law trials. The parties to a case, typically represented by lawyers, are responsible for investigating, gathering, and presenting evidence. This battle of wits is overseen by an impartial judge. This system is philosophically distinct from the inquisitorial approach, where a judge takes a more active role in investigating the facts of the case.
In common law countries where they have jury systems, there is separation of roles between judge and jury. The common law system historically evolved with a strict division of labor between the judge and the jury. The judge acts as a neutral referee, deciding questions of law, such as whether evidence is legally admissible. The jury, composed of laypersons, is the "trier of fact" and assesses the evidence presented to determine guilt or liability.
The philosophy of evidence is deeply influenced by the common law's reliance on judicial precedent (stare decisis). Rules of evidence have gradually evolved through individual court decisions rather than a formal codified system. However, modern common law countries have increasingly incorporated statutory law and codified rules of evidence. Early common law theorists believed that the law was based on common reason and long-standing custom. While this was later critiqued, the idea that law evolves from and is refined by practiced reasoning is a central tenet of common law philosophy.
The common law's distinctive use of exclusionary rules, which bar certain types of logically relevant evidence, is a key philosophical feature justified by several policy goals:
• Reliability: The classic rationale, put forth by scholars like Wigmore, is that rules such as the hearsay rule or the ban on evidence of bad character exclude information that is potentially unreliable, confusing, or misleading.
• Protecting against prejudice: Some rules prevent evidence that might unduly prejudice or distract the jury from the central issues of the case. A car accident victim's history as a "liar, cheater, and womanizer," for example, would likely be excluded as unfairly prejudicial.
• Protecting extrinsic social policy: The law of evidence also excludes information to serve policies outside the courtroom, such as the protection of confidential relationships and legal privileges. Examples include attorney-client privilege, spousal privilege, and the exclusion of evidence obtained through illegal searches and seizures.
• Controlling the adversarial process: The rules ensure that zealous advocates do not prioritize "winning" over accurately determining the facts. This compels lawyers to present the most reliable evidence available.
The rules governing the burden and standard of proof are central to the philosophy of evidence, as they reflect a society's values about risk distribution and fairness. The common law places the burden of proof on the party making a claim. In a criminal case, the prosecution bears the burden of proving the defendant's guilt. This reflects the presumption of innocence. In a civil case, the plaintiff must prove their case. The common law applies different standards of proof depending on the gravity of the case. Beyond a reasonable doubt is the highest standard, required for the prosecution to secure a criminal conviction. It reflects the value placed on avoiding wrongful convictions. Balance of probabilities / Preponderance of the evidence is the standard in civil cases, where a claim must be shown to be "more likely than not" true.
In recent decades, common law evidence has evolved with new philosophical considerations. To begin with, there has been shifts from rules to reasons. Some modern jurisdictions have moved away from strict, traditional exclusionary rules towards allowing judges more discretion to evaluate the reliability and prejudicial effect of evidence on a case-by-case basis. This shift often involves focusing on the reasoning behind admitting or excluding evidence rather than relying solely on rigid rules. Further, evidence theory now draws heavily from other disciplines, such as epistemology, psychology, statistics, and critical legal studies, to analyze and reform evidentiary rules. Then, international human rights standards have increasingly influenced common law evidence. For instance, the emphasis on ensuring a "fair trial" in criminal proceedings has led to the development of evidentiary protections, such as requiring equal access to evidence and legal counsel.
Background of Evidence Act
The Evidence Act has its origin in the Indian Evidence Act 1872. The Indian act was enacted to codify and simplify the English law of evidence. It was thought necessary due to the low calibre of magistrates that the Indian Judicial Services attracted. During the 1889 East African Order-in-Council, provision was made for creation of consular courts to exercise jurisdiction as far as circumstances permitting upon principals of and in conformity with substantive law at the time being in force in England. The 1897 East African Order in Council repealed the earlier one and stated that jurisdiction of High Court should be exercised in conformity with certain Indian enactment's. The Indian Evidence Act of 1872 was one. The Kenyan Evidence Act 1963 repealed the Indian Act but did not contain any radical departure from Indian legislation. The current Evidence Act is the 2010 version.
The Act recognizes African customary law and polygamy. It also consolidated various other provisions, which had been enacted in other Acts, like sections 57, 127, 156 which were, hitherto in the Criminal Procedure Code.
Discussions under this chapter are divided into two sections. Part one discusses the different varieties of the law of evidence. Section two grapples with the principles employed thereof.
Moi University Law Lectures
LAW, ITS PEDAGOGICAL AUTONOMY AND THE LEGAL PROFESSION
D. Kiboyye Okoth-Yogo
INTRODUCTION
In a... more LAW, ITS PEDAGOGICAL AUTONOMY AND THE LEGAL PROFESSION
D. Kiboyye Okoth-Yogo
INTRODUCTION
In a 2009 professorial inaugural lecture, Professor Akong’a asserted that “for an area of study to be considered a discipline, it should claim subject matter and methodology to which others don’t lay claim”. He was referring to anthropology. However, he made sense of the broader “subject autonomy”. Law can be looked at in the same vein. One of the remarkable things about the study of law is the conflict and consensus on the question of its pedagogical purity in relation to interdisciplinarity.
Arguably, pedagogical purity and interdisciplinarity are not opposites. By discussing them in one breath, a dialectical bubble is not fanned. This is because great legal education must encompass holisticism. Great readings of anthropology, sociology, religion, literature, history and philosophy makes one develop great scholastic courage and deep insights into unique constructions of various aspects of law, or application of law to various sets of social, economic, political and environmental phenomena. Appreciation of the scientific world, social and natural, turns a lawyer into a useful member of the society. Such lawyer can apply his great mind into working with other experts in developing useful legislation, polices, strategies and programs for progress. Humane attitude in a lawyer is also good for connecting with the people served, and the greater universe, creating a common ground where focus on understanding human challenges, solutions and cumulative phenomena and circles is revered. Mastery of languages turns a lawyer into a great artist. He can use his great knowledge of language to design great relationship deeds, provide that unequivocal touch that dispute resolution processes so much cherishes and wangle that timeless piece of legislation, treaty, legal policy…
A first degree in some liberal education followed by a law degree that delves into both professional training and philosophical orientation is in order. Such lawyers would not only bring to the profession sound practical skills but also compelling jurisprudence and ethics.
Talks by Duncan Kiboyye Okoth-Yogo
Ijed Blog, 2025
As President Ruto heads towards regarding a fresh mandate in 2027, and notwithstanding the "wanta... more As President Ruto heads towards regarding a fresh mandate in 2027, and notwithstanding the "wantam-tutam" ruckus, a relook of his foreign policy is vital. Today he leads a country which acknowledged diplomacy is hinged on strident articulation, fluidity and synergistic relatedness of economic, peace, environmental, cultural, and diaspora diplomacy. These are supposedly effected in the country's national interests. However, are these Kenya's actual diplomatic embodiments or façade? Diplomacy is never some linier rollercoaster. One cannot discourse it in absolute terms. It is a crystallisation of complex phenomena and happenstances. Take for example the expression non-alignment. Even a country like Switzerland that presents a "neutrality" profundity remain aligned to some geo-political order. So when is a country non-aligned? Even the historical Non-Aligned Movement (NAM) was an alignment. In summation, non-alignment or alignments are hyped diplomatic expressions. A country aligns to its need intricacies, flavored diplomatic alignments.
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Papers by Duncan Kiboyye Okoth-Yogo
The Law of Evidence is concerned with facts of a given case and means of proving them. These include state of facts or relation of things capable of being preserved by senses, mental condition of which any person is conscious, any material object, and material facts like demeanor of a person. The state of thing must therefore state the relation which these facts bear to each other. Ordinary fact is anything which has been said or done or which can be presented by any of the five senses.
Facts open to proof are facts in issue, relevant facts and collateral facts. Prof. Cross opines that facts in issue are those facts, which the plaintiff in a civil case or prosecution in a criminal case must establish in order to be successful. They also include any fact a defendant or an accused must establish to succeed in defense. Stephens digest on law of evidence provides that fact is relevant to another fact if the former fact render the existence or non-existence of the later fact more or less probable. It can therefore be said to be genuine issues of the trial. Collateral facts are of three kinds. First are those facts that affect the competence of a witness. Competence of witness refers to the ability of a witness to testify. Secondly, facts that affect the credibility of a witness. Thirdly, facts, which must be proved as, condition precedent to the admissibility of a certain items of the evidence.
Environment is the aggregate physical setting within which the systems of the universe relate (Okidi, 2008). Enduring interactions between its components such as the anthropogenic sphere, land, water, space, atmosphere, climate, sound, odour, taste, biodiversity, aesthetics, inter alia, are crucial for life (GoK,1999; Sec 2: Okidi (2008). The environment is a critical factor in human civilization. Diplomacy, dealings between governments of independent states, is an integral part of international relations. It encompasses the means of managing negotiations among international personalities. States, among other international personalities, do engage in it to deal with the environment. Pertinent international relations is conducted through diplomatic excursions and can be looked at from two prisms. Firstly, states’ territoriality is not only in reference to their very environmental spaces but also the importance of underscoring their sovereignty. So the environment is part of sovereign states’ rationale within a backdrop of global community. Secondly, the environment is one of the reasons why sovereign state entities must out of necessity, and perpetually, engage in mutual dialogues and agreements amongst them. Therefore, international relations, conducted through mutual environmental diplomacy, is essential.
International relations emanate from states’ foreign policies as modified through actual diplomatic exertions founded on their foreign policies. The conception and execution of foreign policy is one of the primary state functions. States strive to make the best advantage of their involvements in international relations. So, novel foreign policy formulation and diplomacy, making pertinent goals and resources work for a country, are an integral part of statecraft. Further, it is acknowledged that one of the greatest outcomes of diplomacy has been the enactment of various laws, both international and domestic. For example international treaties are direct products of diplomacy. The rights and obligations of states more often than not, emanate from established principles in international law. These are useful in bestowing rights on third party states and citizens. In practice, international law regulates a wide spectrum of international relationships in the economic, social, political and environmental arena.
The aim of this discussion is to assay the emanating history of Kenya’s foreign policy-environmental diplomacy interactions since 1963. Kenya’s foundation was the integration of various cacophonous polities from 1885 under a British colonial enterprise. It became an independent country in 1963. At that point it joined the international community of nations, replete with both the inherited and newly perceived international environmental agenda. Kenya’s independence also coincided with a period of growing importance of the environment as a subject of international cooperation. As a former colony and developing country, Kenya has tended to join other third world countries in bringing up their pertinent world view in environmental diplomacy.
Diverse subthemes have emerged under environmental diplomacy, such as pollution, biodiversity conservation and use, climate change and the human ecology-resources deployment node. The most ubiquitous diplomatic objective over all history has been about health and safety concerns. Myriad international dialogue, especially linking health and safety to good neighborliness and international cooperation, have place to grapple with them. A subject such as covid19, today much discussed in various diplomatic fora, does not only come out as a medical issue but also an environmental concern. The environment also impact on international security. Countries have even fought over natural resources. So are the economic ramifications, gleaned through the efficiency matrix. Other objective areas are the pertinent advancement of science and technology, human rights and community stability, humanitarian assistance, aesthetics and recreation, sustainable development, among others. Management tools such as command and control schemes, novel technological adaptations, environmental assessments, planning and mitigations, models such as carbon credit trade under the climate change, procedural agenda, among others, have been employed.
According to Kiss (1992), international environmental management as we know it today is largely attributed to the aftermath of the Second World War. The post war reconstruction led to unprecedented global economic development. This also exerted a lot of pressure on ecological stability. Maurice Strong (2001) opined that ‘the essential theme of the modern age is interdependence of all the life elements, which sustain life on the planet.’ This symbiosis includes that of ‘man with those elements, of the natural system with man’s needs and aspirations and most of all man with man’, he continued.
Medical research can be classified into three areas. These are basic research, applied research, and translational research. Another form of categorizing medical research is in terms of the assessment of new management for safety and efficacy and clinical trials, on the one hand and all other research that contributes to the development of novel techniques and preclinical research, on the other. Translational research encompasses two areas. One is the ‘the process of applying discoveries generated during research in the laboratory, and in preclinical studies, to the development of trials and studies in humans’. The second is about research for advancing “best practices in the community”. All these forms of research do have ethico-legal ramifications.
Ethics refer to how people elect to interrelate with others. It also circumscribes what is good for both the person and community. Further, it ascertains the character of duties that people owe themselves and others in community. Law on the other hand can be a crystallization of ethical values of a society. That is not to mean that law and ethics mean the same thing. In fact myriad acts that are unethical are not necessarily forbidden by law. However, a lot of laws have been ethical issues first before they become legal issues.
Duncan Kiboyye OKOTH-YOGO2
Kariuki G. CHARAGU3
Abstract : Performance contract (PC) is a negotiated agreement, arrived at after a meeting of minds, between a government and a respective ministry, department, agency or a public officer, clearly specifying short-term implementation goals, obligations and responsibilities between the two parties (GOK, 2004a) . It is an integral part of both bureaucratic law and management renewal in the public services, useful in identifying priorities and required inputs, for improved service delivery. The study was an endeavor to establish the employees’ perception of the relevance of PC as a tool for improving service delivery, its impact in the ministry of lands and the challenges it encounters. It was guided by the agency theory. Data was collected from 91 respondents who were employees in the department of land adjudication and settlement at its Nairobi headquarters, 16 respondents from Thika and 13 from Machakos districts respectively. Secondary data was sourced from existing literature after which descriptive statistics was proffered. The study established that employees think positively of PC as useful in advancing effective governance but face the challenge of inadequate resources and lack of ownership. The study recommends changes in the fiscal allocation regulations by providing for increased budgetary provisions for PC implementation programs and increased rewards based on performance in order to improve both quantity and quality of output.
Keywords: Performance Contracts; Agency Theory; Employee; Perceptions.
JEL: R38; R52; R58.
Working Paper Series, IJED Institute, 2015
What does the expression “law” mean to a typical Kenyan? How does the expression “law” relate to the Kenyan legal system? These are the two questions this paper seeks to answer. The paper is also sentient of the understanding that law is as old as human society. The need for law has been crucial as communal glue. Both the democratic and authoritarian regimes claim their legitimacy from certain legal authority. Whether due to fear of metaphysical abyss, absurdities of self-help, need for conserving socio-economic goods, or keeping in place a government of effective mechanisms, among other things, law is extant. No wonder, in spite of the subjugationist foundations of the Kenya’s legal system, law having been established as tool for pacifying the Kenyan communities into accepting the derogatory colonial edifice, independence could only be a promise to progressively engender changes. The idea of dissipating the basic colonial legal foundations, that integral part of the colonialism, was never even considered. It had assumed a significant place in the carved up Kenyan nation-state society that could not just be fancied off. Another way of looking at law is through its seamless-chaos. This is crystallized both by its seemingly orderly instrumentation and erratic interactions between different cultural elements, often drawing from the deepest ends of every discipline. Occasionally one catches glimpses of oscillation between its divergent regional, ideological and cultural dimensions-North-South divide, social and economic eccentricities, communitarian ethos versus unmitigated free enterprise among others. However such visualizations are more of flashes than clear trajectories. About one hundred and thirty years ago Kenya neither existed as a nation nor state. In its place were different national configurations exemplified in different sizes and customs characterized by unique norm structures, processes and socio-legal systems. Custom as used here refer to the conventional pattern of behavior that exist within a particular socio-political setting. Customs in these nations, what the Luo call piny, headed by a ruoth, or the Nandi Pororiet or the Wanga Kingdom, among others, always acquired the force of law as they became the undoubted rule by which a variety of rights, entitlements, and responsibilities were regulated between members of a polity. Lord Denning in his enunciation of the English meaning of customary law asserted in R. v Secretary of State for Foreign and Commonwealth Affairs that “these customary laws are not written down. They are handed down by tradition from one generation to another. This is similar to the meaning of Suba, Luo, Kikuyu or any other African customary law. Such customs “are well established and have the force of law within the community”. However, like any other African colonial enterprise, this changed, especially after the Berlin conference on the partition of Africa by European powers, which ended in 1885. By 1920, Kenya had assumed its present status. It was to remain under British rule until 1963. Within the short colonial period, lasting less than one hundred years, Kenya had become a flash point for legal experimentation and chaos. A new legal system, largely denigrating the traditional set up was established. What has remained of the old legal systems and residually infused within the Kenyan legal system is collectively referred to as the African Customary Laws applied to matters such as marriage, divorce, traditional authority among other tangential issues.
Law is as old as human society. The need for law has been crucial as a communal glue. Both the democratic and authoritarian regimes claim their legitimacy from some legal authority. Whether due to fear of metaphysical abyss, absurdities of self-help, need for conserving socio-economic goods, or keeping in place a government of effective mechanisms, among other things, law is extant. No wonder, in spite of the subjugationist foundations of the Kenya’s legal system, law having been established as tool for pacifying the Kenyan communities into accepting the derogatory colonial edifice, independence could only be a promise to progressively engender changes. The idea of dissipating the basic colonial legal foundations, that integral part of the colonialism, was never even considered. It had assumed a significant place in the carved up Kenyan nation-state society that could not just be fancied off. Another way of looking at law is through its seamless-chaos. This is crystallized both by its seemingly orderly instrumentation and erratic interactions between different cultural elements, often drawing from the deepest ends of every discipline. Occasionally one catches glimpses of oscillation between its divergent regional, ideological and cultural dimensions-North-South divide, social and economic eccentricities, communitarian ethos versus unmitigated free enterprise among others. However such visualizations are more of flashes than clear trajectories. About one hundred and thirty years ago Kenya neither existed as a nation nor state. In its place were different national configurations exemplified in different sizes and customs characterized by unique norm structures, processes and socio-legal systems. Custom as used here refer to the conventional pattern of behavior that exist within a particular socio-political setting. Customs in these nations, what the Luo call piny, headed by a ruoth, or the Nandi Pororiet or the Wanga Kingdom, among others, always acquired the force of law as they became the undoubted rule by which a variety of rights, entitlements, and responsibilities were regulated between members of a polity. Lord Denning in his enunciation of the English meaning of customary law asserted in R. v Secretary of State for Foreign and Commonwealth Affairs that “these customary laws are not written down. They are handed down by tradition from one generation to another. This is similar to the meaning of Suba, Luo, Kikuyu or any other African customary law. Such customs “are well established and have the force of law within the community”. However, like any other African colonial enterprise, this changed, especially after the Berlin conference on the partition of Africa by European powers, which ended in 1885. By 1920, Kenya had assumed its present status. It was to remain under British rule until 1963. Within the short colonial period, lasting less than one hundred years, Kenya had become a flash point for legal experimentation and chaos. A new legal system, largely denigrating the traditional set up was established. What has remained of the old legal systems and residually infused within the Kenyan legal system is collectively referred to as the African Customary Laws applied to matters such as marriage, divorce, traditional authority among other tangential issues.
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The judiciary, alongside the legislature and the executive, is one of the three branches of government. Its basis, alongside the other arms of government is the doctrine of checks and balances, founded on separation of powers, limitation of powers and public space in governance. All these three are a fundamental guarantee of the independence of the judiciary. The Kenyan constitution, and the rule of law in its entirety, entail that it be independent from the other branches of government. This article examines judicial independence and the aspects which define it. It traces the Kenya judicial foundations in the vestiges of colonial edifice. The current constitutional provisions are also analyzed.. This paper is justified for the need to come to grips with adequate philosophical interrogation of the rationale for judicial independence is crucial, so is a conceptual model that will help, to articulate policies and discern pertinent response mechanisms.
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BY
Emily Damaris Mateche
Duncan Kiboyye Okoth-Yogo
ABSTRACT
Water pollution is one of the major challenges to sustainable management of water resources in Kenya. Using environmental surveillance systems that include the Geographic Information Systems [GIS] and remote sensing, the occurrences and etymology of these pollutions can be established. They have been used in courts and in environmental assessments to advance environmental justice. . As a forensic tool in law enforcement, they enable the ‘availability of unique synoptic views of the terrain’.
The paper is justified by the rationale that despite the fact that Environmental Management and Coordination Act [EMCA] prohibits the discharges of any poison, toxic substances, noxious or obstructing matter, radioactive wastes or other pollutants into the aquatic environment unless under the procedure laid down by the relevant regulations such pollutions continue unabated. The water resources are continually contaminated by human and other animal wastes, toxic chemical, metals and oils. The sources of the pollutants are usually the Industries, sewage systems and agricultural chemicals and wastes. Part of the problem is that the existence of the law is not backed by an effective evidence system.
The paper recommends the direct legal provision for recognition, availing and the use of environmental surveillance systems in the management of water resources. It would then be easy to capture, store and use evidentiary useful information for environmental accounting, audit and dispute resolution, through establishment of water pollution sources and etymologies.
Key Words: Water; Pollution; Evidence; Remote Sensing; Geographic Information Systems [GIS]
Duncan Kiboyye Okoth-Yogo
John O. Oluoch
ABSTRACT
Public participation is today an integral part of Kenya’s legal positivism out of the accepted wisdom that the authorities in charge of environmental management will do better if they are exposed consistently to public views. In addition, the public is likely to feel better and be more positively won over to accept outcomes if they are invited to express their opinions and facts. Education is an essential tool for proffering better public participation as it not only eases the communication and understanding of its rationale but also augments the potency of indigenous knowledge, science and technology, international comity and national goals for sustainable developments. A study of the Environmental Impact Assessments, Environmental Audits, Public Interest Litigation and Public Participation as provided for under the Environmental Management and Coordination Act of Kenya (1999), conducted between 2003 and 2008, has shown that there is a profound nexus between public participation on sustainable development issues on the one hand and higher learning on the other. A further study on the contents of the schools and colleges curricular also reveal that sustainable development is not adequately reflected as a vital component of the pedagogies. Third, the laws on public participation on environmental assessments are provided as if the levels of education are immaterial in carrying out effectual appraisals. Further to the foregoing, the provision for public participation under EMCA only envisages a public response to decisions which are already made. The law is silent on public participation at the project or policy planning phases. The principle of public participation is therefore rendered deficient. It has in many cases led to post decision citizens protests and costly litigation processes. The study has shown that an educated citizen involvement at the inception of projects and policies not only promotes environmental management resourcefulness but also justice. The paper recommends legal reforms that reflect the exigency for exponential environmental education for better informed choices. This can be done by way of civic education, continuing environmental education for relevant professionals and the need to reorient curricular at all levels to include a thorough understanding of sustainable development matrix. These are considered crucial for environmental justice.
The British Raj’s appropriation of lands that belonged to the natives continues to under-score land-holding matrix in Kenya. They are steeped in “historical injustices”, a euphemism for colonial and post-colonial denigration of human rights and communities’ stability. The British colonialists acquired lands in Kenya through fraudulent agreements, false pretences at sovereign legitimacy and forceful pacification of the “primitive ethnic nationalities”. Colonial subjugationism was premised on a profound nexus between fading western feudalism and the then nascent capitalism. It eventually crystallized in a social system in which the colonizer controlled both the means of production and ideological dictum. The means of production was exemplified by large scale farming, mining, tourist-centric conservancies, all based on a land-holding system akin to feudalism. When the Crown Lands Ordinance of 1915 declared all ‘waste and unoccupied lands’ as the property of the British government, and subject to the governors powers of alienation, the stability of Kenyan communities who had been pushed, together with animals to the reserves from lands they had hitherto controlled communally, were disrupted by polices that were meant to ascertain they did not own the means of production. Africans were definitely part of the colonial equation. However theirs was to provide a subservient support for the same. For example, the provision of cheap labour was their domain. Then the 1963 independence was tipped over in favour of retaining the status quo. Only this time the nucleus of subjugation was the up-and-coming local bourgeoisie. The paper is a historical analysis of the profound interaction between the evolution of land law and justice in Kenya. What is the history? Is the rights system in the inherited model a better way than the traditional communal land-holding system? The paper asserts that the subjugation of Kenyans and forcefully ushering them into global capitalism where they were bowed into embracing subservience and the independence that refused to yield are the bane of the land-holding matrix. Then, it remains to be seen if the changes wrought, especially under the 2010 constitutional dispensation are far reaching enough.
Teaching Documents by Duncan Kiboyye Okoth-Yogo
The Law of Evidence is concerned with facts of a given case and means of proving them. These include state of facts or relation of things capable of being preserved by senses, mental condition of which any person is conscious, any material object, and material facts like demeanor of a person. The state of thing must therefore state the relation which these facts bear to each other. Ordinary fact is anything which has been said or done or which can be presented by any of the five senses.
Facts open to proof are facts in issue, relevant facts and collateral facts. Prof. Cross opines that facts in issue are those facts, which the plaintiff in a civil case or prosecution in a criminal case must establish in order to be successful. They also include any fact a defendant or an accused must establish to succeed in defense. Stephens digest on law of evidence provides that fact is relevant to another fact if the former fact render the existence or non-existence of the later fact more or less probable. It can therefore be said to be genuine issues of the trial. Collateral facts are of three kinds. First are those facts that affect the competence of a witness. Competence of witness refers to the ability of a witness to testify. Secondly, facts that affect the credibility of a witness. Thirdly, facts, which must be proved as, condition precedent to the admissibility of a certain items of the evidence.
Philosophical perspectives
The philosophy of the common law of evidence is grounded in its adversarial system, which balances the pursuit of truth with procedural fairness to protect the rights of the accused. Distinct from the inquisitorial approach of civil law systems, the common law model relies on exclusionary rules enforced by a neutral judge to manage evidence presented to the court.
Truth ought to be balanced with fairness. A foundational tension exists between the pursuit of an accurate, epistemic, outcome and the protection of fair trial rights. While the ideal outcome is that the guilty are convicted and the innocent are acquitted, the common law prioritizes protecting the innocent and maintaining the integrity of the process, even at the cost of excluding relevant information. The European Court of Human Rights, for instance, has reinforced this balance by limiting the use of unreliable evidence, such as unexamined statements used as the sole basis for a conviction.
An adversarial process is the corner stone of common law trials. The parties to a case, typically represented by lawyers, are responsible for investigating, gathering, and presenting evidence. This battle of wits is overseen by an impartial judge. This system is philosophically distinct from the inquisitorial approach, where a judge takes a more active role in investigating the facts of the case.
In common law countries where they have jury systems, there is separation of roles between judge and jury. The common law system historically evolved with a strict division of labor between the judge and the jury. The judge acts as a neutral referee, deciding questions of law, such as whether evidence is legally admissible. The jury, composed of laypersons, is the "trier of fact" and assesses the evidence presented to determine guilt or liability.
The philosophy of evidence is deeply influenced by the common law's reliance on judicial precedent (stare decisis). Rules of evidence have gradually evolved through individual court decisions rather than a formal codified system. However, modern common law countries have increasingly incorporated statutory law and codified rules of evidence. Early common law theorists believed that the law was based on common reason and long-standing custom. While this was later critiqued, the idea that law evolves from and is refined by practiced reasoning is a central tenet of common law philosophy.
The common law's distinctive use of exclusionary rules, which bar certain types of logically relevant evidence, is a key philosophical feature justified by several policy goals:
• Reliability: The classic rationale, put forth by scholars like Wigmore, is that rules such as the hearsay rule or the ban on evidence of bad character exclude information that is potentially unreliable, confusing, or misleading.
• Protecting against prejudice: Some rules prevent evidence that might unduly prejudice or distract the jury from the central issues of the case. A car accident victim's history as a "liar, cheater, and womanizer," for example, would likely be excluded as unfairly prejudicial.
• Protecting extrinsic social policy: The law of evidence also excludes information to serve policies outside the courtroom, such as the protection of confidential relationships and legal privileges. Examples include attorney-client privilege, spousal privilege, and the exclusion of evidence obtained through illegal searches and seizures.
• Controlling the adversarial process: The rules ensure that zealous advocates do not prioritize "winning" over accurately determining the facts. This compels lawyers to present the most reliable evidence available.
The rules governing the burden and standard of proof are central to the philosophy of evidence, as they reflect a society's values about risk distribution and fairness. The common law places the burden of proof on the party making a claim. In a criminal case, the prosecution bears the burden of proving the defendant's guilt. This reflects the presumption of innocence. In a civil case, the plaintiff must prove their case. The common law applies different standards of proof depending on the gravity of the case. Beyond a reasonable doubt is the highest standard, required for the prosecution to secure a criminal conviction. It reflects the value placed on avoiding wrongful convictions. Balance of probabilities / Preponderance of the evidence is the standard in civil cases, where a claim must be shown to be "more likely than not" true.
In recent decades, common law evidence has evolved with new philosophical considerations. To begin with, there has been shifts from rules to reasons. Some modern jurisdictions have moved away from strict, traditional exclusionary rules towards allowing judges more discretion to evaluate the reliability and prejudicial effect of evidence on a case-by-case basis. This shift often involves focusing on the reasoning behind admitting or excluding evidence rather than relying solely on rigid rules. Further, evidence theory now draws heavily from other disciplines, such as epistemology, psychology, statistics, and critical legal studies, to analyze and reform evidentiary rules. Then, international human rights standards have increasingly influenced common law evidence. For instance, the emphasis on ensuring a "fair trial" in criminal proceedings has led to the development of evidentiary protections, such as requiring equal access to evidence and legal counsel.
Background of Evidence Act
The Evidence Act has its origin in the Indian Evidence Act 1872. The Indian act was enacted to codify and simplify the English law of evidence. It was thought necessary due to the low calibre of magistrates that the Indian Judicial Services attracted. During the 1889 East African Order-in-Council, provision was made for creation of consular courts to exercise jurisdiction as far as circumstances permitting upon principals of and in conformity with substantive law at the time being in force in England. The 1897 East African Order in Council repealed the earlier one and stated that jurisdiction of High Court should be exercised in conformity with certain Indian enactment's. The Indian Evidence Act of 1872 was one. The Kenyan Evidence Act 1963 repealed the Indian Act but did not contain any radical departure from Indian legislation. The current Evidence Act is the 2010 version.
The Act recognizes African customary law and polygamy. It also consolidated various other provisions, which had been enacted in other Acts, like sections 57, 127, 156 which were, hitherto in the Criminal Procedure Code.
Discussions under this chapter are divided into two sections. Part one discusses the different varieties of the law of evidence. Section two grapples with the principles employed thereof.
D. Kiboyye Okoth-Yogo
INTRODUCTION
In a 2009 professorial inaugural lecture, Professor Akong’a asserted that “for an area of study to be considered a discipline, it should claim subject matter and methodology to which others don’t lay claim”. He was referring to anthropology. However, he made sense of the broader “subject autonomy”. Law can be looked at in the same vein. One of the remarkable things about the study of law is the conflict and consensus on the question of its pedagogical purity in relation to interdisciplinarity.
Arguably, pedagogical purity and interdisciplinarity are not opposites. By discussing them in one breath, a dialectical bubble is not fanned. This is because great legal education must encompass holisticism. Great readings of anthropology, sociology, religion, literature, history and philosophy makes one develop great scholastic courage and deep insights into unique constructions of various aspects of law, or application of law to various sets of social, economic, political and environmental phenomena. Appreciation of the scientific world, social and natural, turns a lawyer into a useful member of the society. Such lawyer can apply his great mind into working with other experts in developing useful legislation, polices, strategies and programs for progress. Humane attitude in a lawyer is also good for connecting with the people served, and the greater universe, creating a common ground where focus on understanding human challenges, solutions and cumulative phenomena and circles is revered. Mastery of languages turns a lawyer into a great artist. He can use his great knowledge of language to design great relationship deeds, provide that unequivocal touch that dispute resolution processes so much cherishes and wangle that timeless piece of legislation, treaty, legal policy…
A first degree in some liberal education followed by a law degree that delves into both professional training and philosophical orientation is in order. Such lawyers would not only bring to the profession sound practical skills but also compelling jurisprudence and ethics.
Talks by Duncan Kiboyye Okoth-Yogo