18 Evidence Cap 80 [2009] (b) the proceeding is between the same parties or their representatives in interest; and (c) the adverse party in the first proceeding had the right and opportunity to cross-examine; and (d) the questions in issue were substantially the same in the first as in the second proceeding. (2) For the purposes of this section (a) the expression “judicial proceeding” shall be deemed to include any proceeding in which evidence is taken by a person authorized by law to take that evidence on oath; and (b) a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused. Admissibility of documentary evidence as to facts in issue. Part V - Statements in Documents produced in Civil Proceedings 35. (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say (a) if the maker of the statement either (i) had personal knowledge of the matters dealt with by the statement; or (ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and (b) if the maker of the statement is called as a witness in the proceedings: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be www.kenyalaw.org