Charles Mwithalii v Julius Bariu M’Itobi [1988] KECA 132 (KLR)

The document examiner gave evidence in the criminal proceedings but was not called as a witness at the civil trial. His opinion as to authorship was therefore second-hand and inadmissible hearsay. Although the proceedings themselves were between the same parties and could theoretically have been admitted under section 34 of the Evidence Act (cap 80), no evidence established the factual conditions of that section, and the trial judge appeared unaware the former testimony was inadmissible.

The respondent relied on section 84 to overcome the hearsay exclusion. The court held that because the magisterial proceedings were produced and signed, the court presumes the proceedings genuine and that the examiner's evidence was duly taken, but the section does not make the substance of that evidence admissible. Only section 34 modifies the hearsay rule, and its conditions were not met here.

The court was unwilling to allow the appeal simpliciter because that might be read as endorsing a possibly serious libel on the respondent. Allowing a rehearing preserved both parties' interests: the appellant escaped a judgment resting on inadmissible proof, while the respondent retained the opportunity to prove authorship with legally admissible evidence.

Ten grounds of appeal were argued, including challenges to whether the posters were defamatory, whether they referred to the respondent, and the excessiveness of the Kshs 30,000 award. Because the court ordered a fresh hearing before a different judge, it expressly refrained from expressing any view on these contentions, leaving them open for decision on the evidence at the retrial.