KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
both the statutory provisions and the constitutional guarantees of fair trial. Under Sections 107 to 109, the burden of proof lies on the party who asserts a fact. In civil cases, the stand- ard is on a balance of probabilities, while in criminal cases it is beyond reasonable doubt. Hearsay evidence is generally inadmissible unless it falls within the statutory exceptions such as dying declarations, admissions, or statements by persons who cannot be called as witnesses. Finally, the rules of privilege apply and further limit admissibility. Courts retain discretion to exclude oth- erwise relevant evidence if admitting it would prejudice a fair trial or contravene the rules of natural justice. 7.5 Expert Testimony Expert testimony is permitted under Section 48 of the Evidence Act, when a court must form an opinion on a point of foreign law, science, art, handwriting, or identity; the opinions of persons specially skilled in such matters are considered relevant facts. Parties are allowed to introduce expert testimony to support or clarify technical or specialised issues such as valuation, engineering, accounting, medical or forensic matters. Expert reports are ordinarily filed and exchanged before trial as part of pre-trial disclosure and the expert may be called to testify at trial. A court may obtain an independent expert opinion where the technical nature of the issues requires professional guidance, particularly in complex or sci- entific matters. In such cases, the expert acts as a neutral adviser to the court rather than a witness for either party. 7.6 Extent to Which Hearings Are Open to the Public The right to a fair and public hearing is not absolute, and courts may limit public access where necessary in instances such as the following. • Proceedings such as divorce, custody, adoption, and maintenance are typically held in camera to
safeguard the privacy and welfare of families and minors. • Under the Sexual Offences Act, Cap. 63A of the laws of Kenya, courts may exclude the public when hearing cases involving sexual violence, to protect the dignity and privacy of the complainant, espe- cially minors. • Courts may conduct proceedings privately where open hearings would compromise national security, state secrets, or public safety, in line with Article 50 (8) of the Constitution and judicial discretion. • Cases involving minors in conflict with the law are mandatorily heard in Children’s Courts. • Protection of witnesses falls under the Witness Protection Act (Cap. 79). Although proceedings are digitally recorded, tran- scripts and records are not automatically public. Parties, their advocates, or persons with legitimate interest may apply for certified copies subject to the court’s approval and payment of fees. The media’s reporting rights are also limited by the sub judice rule and contempt-of-court principles to ensure fairness and prevent interference with ongo- ing cases. 7.7 Level of Intervention by a Judge The level of judicial intervention during hearings or tri- als depends largely on the nature of the proceedings and the court’s jurisdiction. During hearings, a judge may intervene to clarify evi- dence or legal issues, direct parties to focus on rele- vant matters, or manage time to prevent unnecessary delays. Under the Overriding Objective principle of the Civil Procedure Act (Cap. 21), judges are encouraged to actively facilitate the just, expeditious, and afford- able resolution of disputes. As for decisions, judgment may be delivered immedi- ately at the conclusion of the hearing where issues are straightforward, evidence is uncontested, or the law is clear. However, in more complex matters, especially where detailed evaluation of evidence, witness cred- ibility, or legal interpretation is required, the court will reserve judgment to a later date.
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