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ELCDismissedNot stated in the excerpt· [2015] KEELC 257 (KLR)

Antony Ashley Burch v Sampat T/A Kilifi Enterprises [2015] KEELC 257 (KLR)

Environment and Land Court (high Court, Malindi)
18 September 2015
1,198 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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A Kenyan court ruled that a plaintiff who sues cannot avoid travelling to court to testify by substituting an affidavit, even where travel is costly.

What this practically means

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Executive summary

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The Plaintiff, Antony Ashley Burch, brought an application dated 5th March 2015 seeking orders that his evidence and that of his witness, Colin Roger Burch, be produced by way of affidavit at the hearing of the suit, invoking Section 35(1) of the Evidence Act on the ground that their attendance in Kenya could not be procured without unreasonable delay and expense. The underlying suit is a landlord-tenant claim in which the Plaintiff seeks rent arrears of Kshs.930,000, mesne profits from 1st March 2009 and vacant possession of L.R. No.1705/22 in Malindi, while the Defendant denies the arrears, alleges an agreement converting renovation expenditure of Kshs.4,244,515 into rent payments, and counterclaims Kshs.3,479,515. The Defendant opposed the application, arguing it would deny him the right to cross-examine the witnesses. The court held that the proviso to Section 35 applies only to witnesses and not to parties to a suit, and that Section 35 does not aid a party who files a suit and then refuses to testify because of the expenses of doing so. It further found that the anticipated expenses (approximately Kshs.364,000 for the Plaintiff) would not outweigh the relief sought of approximately Kshs.3,060,000 plus vacant possession. The court dismissed the application with costs.

Key legal issues

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01

Whether a plaintiff may testify by affidavit under Section 35(1) of the Evidence Act to avoid travel expenses

Holding

No. Section 35 does not aid a party who files a suit and refuses to testify because of the expenses of testifying; the proviso applies only to witnesses, not parties.

Reasoning

The court examined the proviso to Section 35, which excuses the calling of the maker of a statement where attendance cannot be procured without unreasonable delay or expense. It held that this applies to witnesses who are makers of documents, not to parties to a suit. If a plaintiff dies or cannot be found, the suit abates or is dismissed; it cannot proceed by affidavit where commenced by plaint. The expenses (about Kshs.364,000) also did not outweigh the claim of about Kshs.3,060,000 plus vacant possession.

p. 2

Legal principles established

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  • Section 35 of the Evidence Act does not permit a party who has filed a suit to give their evidence by affidavit merely because attending court would incur expense; the proviso applies only to witnesses, not parties to a suit

Court orders

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  1. 1.The Plaintiff's Application dated 5th March 2015 is dismissed with costs

Authorities

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Legislation

  • Evidence Act (Cap 80)Section 35(1) and proviso
Jurisdiction invoked
Original civil suit jurisdiction (landlord and tenant claim); application under Section 35(1) of the Evidence Act (Cap 80)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Antony Ashley Burch v Sampat T/A Kilifi Enterprises [2015] KEELC 257 (KLR)", Case Analysis (2015). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/257/eng@2015-09-18

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