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ELCOther· [2017] KEELC 575 (KLR)

David Njagi Wambu v Grace Muthoni Gituto & another [2017] KEELC 575 (KLR)

High Court of Kenya
8 December 2017
BOB.N. Olao
788 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court allowed a retired examiner's report into evidence because tracking him down would cost too much time and money.

What this practically means

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Executive summary

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This is an interlocutory ruling delivered in the course of a civil trial before the High Court at Kerugoya (B.N. Olao, J) on 8th December 2017 concerning the admissibility of two documents the defence sought to produce: an Exhibit Memo form and a report by a document examiner, Mr. Kenga, prepared in an earlier criminal case in which the plaintiff was accused of forging documents relating to the sale of land. The witness, Mr. Munene Nyaga (DW3), a former Police officer and the Investigating Officer, sought to produce the documents because Mr. Kenga had left the Police service and could not readily be traced. Counsel for the plaintiff, Mr. Kagio, objected, arguing that DW3 was not the maker of the documents, had never worked with Mr. Kenga and was not conversant with his handwriting, and that there was no evidence Mr. Kenga could not be traced. Defence counsel relied on Sections 6, 35 and 77 of the Evidence Act. The court held that DW3 prepared the Exhibit Memo form himself and was therefore its maker, so no objection lay to its production. As to the document examiner's report, the court invoked Section 60(1)(o) of the Evidence Act to take judicial notice of the fact that for a long time there were only two document examiners in the country, Mr. Kenga and Mr. Maweu, both long retired. It found that procuring Mr. Kenga's attendance would involve unreasonable delay and expense, bringing the report within Section 35(1) of the Evidence Act, and noted that Mr. Kenga was an expert under Section 48. The objection was overruled and the documents admitted in evidence, with the further hearing set for 15th February 2018 by consent. No costs order was made.

Key legal issues

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01

Admissibility of the Exhibit Memo form produced by the Investigating Officer

Holding

The objection failed because DW3 was himself the maker of the Exhibit Memo form, having prepared and forwarded the documents in the criminal case.

Reasoning

As Investigating Officer in the criminal case against the plaintiff for forging land sale documents, DW3 prepared the documents and forwarded them to the document examiner. Being the maker, he could properly produce the Exhibit Memo form, and no objection to its production could be sustained.

p. 2
02

Admissibility of the document examiner's report under Sections 35(1), 60(1)(o) and 48 of the Evidence Act

Holding

The report was admissible because its maker could not be found and procuring his attendance would involve unreasonable delay and expense, a fact of general notoriety which the court could judicially notice.

Reasoning

Mr. Kenga, the document examiner, had left the Police service and his whereabouts were unknown. The court took judicial notice under Section 60(1)(o) that for a long time there were only two document examiners in the country, Mr. Kenga and Mr. Maweu, both retired. Section 35(1) therefore rendered the report admissible, and Mr. Kenga is an expert under Section 48.

p. 2

Legal principles established

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  • A document is admissible under Section 35(1) of the Evidence Act where its maker cannot be found or his attendance cannot be procured without unreasonable delay or expense, and a court may take judicial notice under Section 60(1)(o) of facts of general notoriety, such as the scarcity of document examiners in public service.

Court orders

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  1. 1.The objection by Mr. Kagio is overruled
  2. 2.The document examiner's report and the Exhibit Memo form may be produced by the defence as evidence
  3. 3.By consent, further hearing on 15th February 2018

Authorities

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Legislation

  • Evidence ActSection 6
  • Evidence ActSection 35
  • Evidence ActSection 35(1)
  • Evidence ActSection 77
  • Evidence ActSection 48
  • Evidence ActSection 60(1)(o)
Jurisdiction invoked
Original civil trial jurisdiction of the High Court (provision not stated in the judgment)

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, "David Njagi Wambu v Grace Muthoni Gituto & another [2017] KEELC 575 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/575/eng@2017-12-08

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