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Court of AppealAllowedCivil Appeal No. 28 of 2016· [2017] KECA 72 (KLR)

Evangeline Nyegera (Suing as the Legal Representative of Felix M'Ikiugu alias M'ikiugu Jeremia M'Raibuni (Deceased) v Godwin Gachagua Githui [2017] KECA 72 (KLR)

Court of Appeal
20 December 2017
1,300 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that photocopies can be used as evidence when original documents are lost, provided their nature and relevance are disclosed.

What this practically means

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Executive summary

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This interlocutory appeal arose from a ruling of the High Court at Meru (Njoroge, J.) dated 9th July 2014 dismissing the appellant's application dated 10th April 2014 seeking leave to admit all copies made from original documents by xerography as secondary evidence. The underlying suit, H.C.C.C. No. 95 of 2010, concerns a declaration that Title No. Ontulili/Ontulili Block 1 (Katheri) 1229 was fraudulently and illegally acquired, and that Plot No. 862 (Katheri) - Timau is solely held by the deceased. The appellant, the legal representative of the deceased, averred she could not trace the original allocation documents issued by Katheri Farmers Co. Ltd, a company she said no longer exists. The respondent opposed, alleging fraud and forgery and asserting no basis for admitting uncertified copies. The High Court dismissed the application, finding the documents undisclosed and their provenance unexplained. The Court of Appeal, allowing the appeal in a single judgment of the court, held that the test for admission of evidence is relevancy, and that secondary evidence by way of copies made by mechanical process is permissible under the Evidence Act. Because the suit was still pending and fair determination requires parties not be denied the opportunity to adduce relevant evidence, the Court reversed the decision of the learned Judge, allowed the application dated 10th April 2014, and remitted the matter to the High Court for hearing on conditions that the appellant state the nature and number of the documents, the relevance of each, and how the copies were made from the originals, leaving the respondent free to cross-examine on veracity and legitimacy. The costs of the application were made costs in the suit.

Key legal issues

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01

Admissibility of secondary evidence by way of copies made by mechanical process where originals are lost

Holding

The Court of Appeal reversed the High Court's refusal to admit xerographic copies as secondary evidence, holding that the Evidence Act allows secondary evidence by way of copies made from the original by mechanical process which ensure accuracy, and that a litigant should not be barred from adducing relevant secondary evidence where originals are lost, provided the nature, number and relevance of the documents are specified.

Reasoning

The Court applied the test of relevancy as the criterion for admission of evidence. Because the suit was still pending, a fair determination required that a party not be denied the opportunity to adduce relevant evidence. The appellant ought to have specified the nature of the documents and their relevance, but the failure to do so warranted a direction to specify rather than outright exclusion. The respondent's safeguard lies in cross-examination on veracity and legitimacy of the copies.

p. 2
02

Conditions a party must satisfy when seeking to adduce secondary evidence

Holding

The party offering secondary evidence must show the nature and number of the documents, the relevance of each, and how the copies were made from the originals.

Reasoning

While the appellant was entitled to adduce secondary evidence, the Court imposed disclosure conditions to protect the opposing party: the appellant must state the nature and number of the documents, the relevance of each, and how the copies were made from the original documents. This preserves the opponent's ability to test the copies on cross-examination and prevents manufacture of evidence.

p. 2

Legal principles established

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  • The test for admission of evidence is relevancy; a party should not be barred from adducing secondary evidence through copies of original documents where the originals are lost or untraceable, provided the nature, number and relevance of the documents is shown, with the other party able to cross-examine on veracity
  • A party offering secondary evidence must specify the nature of the documents, their number and their relevance, and how the copies were made from the originals; the opposing party retains the right to cross-examine on veracity and legitimacy

Court orders

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  1. 1.The decision of the learned Judge of the High Court dated 9th July 2014 is reversed
  2. 2.The application dated 10th April 2014 is allowed
  3. 3.The matter is referred back to the High Court for hearing, with the appellant to state the nature and number of the documents, the relevance of each, and how the copies were made from the original documents
  4. 4.The costs of the application shall be in the suit

Authorities

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Legislation

  • Evidence ActSection 64
  • Evidence ActSection 68
  • Evidence ActSection 68(1)(c)
  • Evidence ActSection 69
  • Court of Appeal RulesRule 31
  • Civil Procedure RulesOrder 11
On appeal from
High Court of Kenya at Meru
H. C. C. No. 95 of 2010
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an interlocutory appeal, pursuant to Rule 31 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Evangeline Nyegera (Suing as the Legal Representative of Felix M'Ikiugu alias M'ikiugu Jeremia M'Raibuni (Deceased) v Godwin Gachagua Githui [2017] KECA 72 (KLR)", Case Analysis (2017). Civil Appeal No. 28 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/72/eng@2017-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.