Martin Ndapatana v National Housing Corporation
The bottom line
#Kenya's Court of Appeal confirmed that a missing witness's affidavit can still be used as evidence, and appeals challenging it must focus on relevant documents only.
What this practically means
#Executive summary
#Key legal issues
#Whether the record of appeal in the ELC was complete despite omitted pleadings
The record was complete; for an interlocutory appeal only the memorandum of appeal, the order appealed from and the pleadings relating to the impugned order are mandatory.
Order 42 rule 13(4) mandates documents in paragraphs (a), (b) and (f), but the judge may dispense with any other document that is not relevant. In an interlocutory appeal, the necessary pleadings are the Motion giving rise to the order, the supporting and opposing affidavits, annexures, submissions and notes of proceedings. None of the issues on appeal turned on the omitted documents, so the ELC judge was right to find the record complete.
Whether the affidavit of David Ngugi, whose attendance could not be procured, was admissible under sections 34 and 35 of the Evidence Act
The affidavit was admissible; the respondent laid sufficient basis for the witness's unavailability and the appellant could still rebut the evidence at trial.
Sections 34 and 35 admit statements of makers who cannot be found or whose attendance cannot be procured without unreasonable delay or expense. The respondent traced its efforts to locate Ngugi; the change of circumstances arose after hearing had commenced, overtaking pre-trial directions. Admissibility is distinct from probative value: the trial court will assess veracity on the merits, and the appellant has ample opportunity to challenge the affidavit.
Legal principles established
#- In an interlocutory appeal, the mandatory record comprises the memorandum of appeal, the order appealed from, and only the pleadings relating to the application giving rise to that order; peripheral documents may be dispensed with.
- Admissibility of a document under sections 34 and 35 of the Evidence Act does not determine its truth or probative value, which is for the trial court on the merits.
- Sections 34 and 35 of the Evidence Act permit admission of statements of a maker who cannot be found or whose attendance cannot be procured without unreasonable delay or expense, and do not exclude statements made in a previous interlocutory application.
Court orders
#- 1.The appeal is dismissed
- 2.The judgment and decree of the ELC at Malindi (M. A. Odeny, J.) delivered on January 19, 2022 are upheld
- 3.The appellant shall bear the costs of the appeal
- On appeal from
- Environment and Land Court at Malindi
- ELCA No. 8 of 2019 (consolidated with ELCA Nos. 9 & 10 of 2019)
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory basis not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Ndapatana v National Housing Corporation", Case Analysis (2025). Civil Appeal (unnumbered on record; from ELCA No. 8 of 2019 consolidated with Civil Appeal Nos. 9 & 10 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/865/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.