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…In Atito v R (1975) e A 278 at page 281 the court of Appeal held:- “What has caused us concern in this case is whether it was established, having regard to the standard of proof in criminal cases, that the appellant was guilty…

…The standard of proof in criminal cases differs from that in civil cases. In any case his failure to testify should not be held against him. His evidence should be considered in the light of other evidence adduced.…

…The standard of proof is the usual one for a civil action, namely, ‘on the balance of probabilities; iii.…

…The onus of proof was on Munini and Musangi and the standard of proof was that of ‘on the balance of probabilities’.…

…However, the judge proceeded to find that the charge of theft in respect of Kshs 21 was proved, on the grounds as we understand the judge’s reasoning that the standard of proof of a criminal charge is on the balance of probabilities…

…This being a civil matter the standard of proof required is on a balance of probabilities.…

…They must be strictly proved and although the standard of proof may not be so heavy as to require beyond reasonable doubt, something more than a mere balance of probabilities is required.…

…A reading of all the judgments in Yawe’s appeal leads me to believe that it was held that:- i) The onus of proving customary law marriage is generally on the party who claims it; ii) The standard of proof is the usual one…