It is like law students, in their excitement over new legal terminologies to find themselves reducing them to a common day words in their talk. One of the legal terminologies we were very keen in our law school days to exploit was 'judicial notice'. It was wont to say that a matter was 'judicially noticed' to express an opinion that the same was obvious and non-contentious. But what really is judicial notice and what is its importance in evidence law, especially in Kenya? These are the issues this article attempts to explore.
Judicial notice is simply what judges can see. In other words, it is the liberty accorded a judicial officer in his duty to recognize the existence or non-existence of certain facts or phenomena without calling for evidence.
The effects of judicial notice as per Section 59 of the Evidence Act, Cap. 80 Laws of Kenya is that "No fact of which the court shall take judicial notice need be proved." In other words, judicial notice dispenses with proof.
Rationale of judicial Notice
There are facts that don't call for an expert witness to know. Take for instance the fact that man has two legs, this will simply not need evidence to prove. Any attempt at adducing evidence for such matter will waste the court's time for nought. But judicial notice is not reserved for straightforward and simple matters as the fact that a man has two legs. There are times that the law will mandate judicial notice in matters that otherwise may seem complex, especially to a lay man or even a lawyer. For instance, meaning of English words may not always be plain but the law provides that the same be judicially noticed.
Basically, judicial notice is an appreciation that judicial officers are members of the society and active members at that. In other words, it is the opposite of the view that judicial members are aloof and removed from the daily travails of the society that consumes their decisions. Thus matters that are known by everybody and/or are commonly known are judicially notice. The point is that one cannot assume that judges are so ignorant that they won't know what everybody else knows.
Basis for allowing Judicial Notice
There are basically there justifications or basis on which the court may take judicial notice of a matter. First is where the same is judicially notice as a matter of habit or customs of the court. This mainly relates to the authenticity for instance of certain signatures. One does not have to prove authenticity of a signature every time he ventures in court.
In addition, the authenticity of court's seal need not be proved as the court habitually uses the seal. Further, the court will not insist on proof of the names and official designation of high ranking officers past and present; international relations of a country and whether Kenya is at war with a country. These are matters of public knowledge and the judges are expected to know.
Second instance where courts take judicial notice is where statutes decree it. There are certain things that the statutes mainly the evidence Act has stipulated that the judiciary need not take evidence in proof i.e. it should judicially notice them. For instance, all the written laws of Kenya are judicially noticed and one need not call proof to establish their existence.
Thirdly, matters that touch on the practice of the court, how the court conducts itself is taken judicial notice of in a bit to make matters workable. In any event, there can be no better expert in the practice of the court than members of the bench and magistracy. In the same breath, ordinary rules of reasoning do not need evidence as our judicial officers are master logicians!
The law on judicial notice in Kenya
Section 60 enumerates matters that the court should take judicial notice of.
60 (1) The courts shall take judicial notice of the following facts:-
(a) All written laws, and all laws, rules and principles, written or unwritten, having the force of law, whether in force or having such force as aforesaid before, at or after the commencement of this Act, in any part of Kenya;
(b) The general course of proceedings and privileges of Parliament, but not the transactions in their journals;
(c) Articles of War for the Armed Forces;
(d) (Deleted by L.N. 22/ 1965).
(e) The public seal of Kenya; the seals of all courts of Kenya; and all seals which any person is authorized by any written law to use;
(f) The accession to office, names, titles, functions and signatures of public officers, if the fact of their appointment is notified in the Gazette;
(g) The existence, title and national flag of every State and Sovereign recognized by the Government;
(h) Natural and artificial divisions of time, and geographical divisions of the world, and public holidays;
(i) The extent of the territories comprised in the Commonwealth;
(j) The commencement, continuance and termination of hostilities between Kenya and any other State or body of persons;
(k) The names of the members and officers of the court and of their deputies, subordinate officers and assistants, and of all officers acting in execution or its process, and also of all advocates and other persons authorized by law to appear or act before it;
(l) The rule of the road on land or at sea or in the air;
(m) The ordinary course of nature;
(n) The meaning of English words;
(o) All matters of general or local notoriety; (things that everyone knows)
(p) All other matters of which it is directed by any written law to take judicial notice.
Some of the matters stated in section 60 (1) above afford wide interpretation and promise to spawn a variety of examples of things to be judicially noticed. For instance, what is a matter of general or local notoriety i.e. things everyone knows affords a soft bed for lawyers to raise many matters for judicial review. For instance, judge may be called to take judicial notice of the jam in Mombassa road near Nyayo stadium every 7.30 AM in week days if such matter is relevant e.g. a counsel explaining why opposite side should have been careful to leave the house early to get to court.
Other specific laws will provide that certain matters be taken judicial notice of. For instance, it is judicially noticed under the Partnership Act that a partnership is not a legal entity in the eyes of law. That a singular meaning in any written law implies the plural meaning should also be judicially noticed as it is provided for in section 3(4) of the Interpretation and General Provision Act, Cap. 2 of Laws of Kenya.
On its part, section 60 (2) of the evidence Act allows the court in all the matters required to be judicially noticed under sub-section (1) and and also on all matters of public history, literature, science or art, to resort for its aid to appropriate books or documents of reference. The judicial officer is saved the burden to go around libraries to seek books and authorities in support of judicial notice contentions. Subsection (3) places that burden on the party seeking that a matter be judicially noticed to produce supporting literature on reliance of which he bases the contention for court's consideration.
Judicial notice of customary law
This is provided for in section 18 of the Magistrates Act. By dint of the section, Magistrates are allowed to take judicial notice of customary law without having to call for proof for it. Only is there is a dispute will customary law be required to be established by proof. Where there are contestations, each side usually calls proof on the content of customary it seeks to advance.
Interesting old cases on judicial notices
The following two cases stand-out as explication of the importance and meaning of judicial notice in common law.
In PRESTON JONES-VS-PRESTON (citation to be provided), Preston went abroad and stayed there for 9 months. No doubt that during that time he had had no nuptial intercourse with his wife as he was not available. In 3 months after return, a fully mature baby was born to his dear wife. He petitioned for divorce on the grounds of adultery. He relied on the ordinary course of nature human to argue that human gestation period was 9 months not 12 months or 3 months and therefore there was no way the child was of his loins.
The court interestingly held that the matrimonial offence of adultery was not proved. In the words of the judges, "though the court took judicial notice of the normal life of human gestation, it was not completely ruled out that there could be abnormal periods of human gestation". Here, there court tried its best to preserve the family unit and avoid disinheriting a hapless and innocent baby!
In BURNS V. EDMUND (citation to be provided), the court was successfully called upon to take judicial notice of the quality and nature of the life of a criminal. In the case Crichton J. halved the conventional award of damages for loss of expectation of life to the wife of a deceased criminal after taking judicial notice of the fact that "the life of a criminal is an unhappy one."
Conclusion
It suffices to reiterate the provision of Section 59 of the Evidence Act that "No fact of which the court shall take judicial notice need be proved." This makes the case why judicial notice is not a mere academic matter to be left only to parroting in law students' jest. Judicial notice presents a practical utility in that it lightens the burden of proof for litigants in reducing the amount of what they have to prove. In other instances, it goes to make matters that would otherwise be contentious plain and obvious and therefore susceptible to quick conclusion.
