40
Evidence
Cap 80
[2009]
a document, have been proved according to section 97, no evidence of
any oral agreement or statement shall be admitted as between the parties
to any such instrument or their representatives in interest for the purpose
of contradicting, varying, adding to or subtracting from its terms:
Provided that (i) any fact may be proved which would invalidate any
document, or which would entitle any person to any
decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity
in any contracting party, want or failure of consideration,
or mistake in fact or law;
(ii) the existence of any separate oral agreement as to any
matter on which a document is silent, and which is not
inconsistent with its terms, may be proved, and in considering whether or not this paragraph of this proviso
applies, the court shall have regard to the degree of
formality of the document;
(iii) the existence of any separate oral agreement constituting
a condition precedent to the attaching of any obligation
under any such contract, grant or disposition of property
may be proved;
(iv) the existence of any distinct subsequent oral agreement
to rescind or modify any such contract, grant or disposition of property may be proved, except in cases in which
such contract, grant or disposition of property is by law
required to be in writing, or has been registered according
to the law in force for the time being as to the registration
of such documents;
(v) any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to contracts of that description may be proved, if the annexing
of such incident would not be repugnant to, or inconsistent with, the express terms of the contract;
(vi) any fact may be proved which shows in what manner the
language of a document is related to existing facts.
Evidence to explain a
patent ambiguity.
99. When the language used in a document is on the face of it
ambiguous or defective, evidence may not be given of facts which would
show its meaning or supply its defects.
www.kenyalaw.org
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