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ELCAllowedNot stated in the judgment as provided· [2017] KEELC 3190 (KLR)

Julia Wanjiru Kiiru (Suing As The Administratix Of The Estate Of The Late Jecinta Wangui Keiru v Doris Ochieng Oluoch & 5 others [2017] KEELC 3190 (KLR)

High Court of Kenya
14 March 2017
248 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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Kenya's High Court allowed a photocopy of a lost receipt as evidence because the party proved the original was lost with a police abstract.

What this practically means

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Executive summary

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This short interlocutory ruling, delivered at Eldoret on 14 March 2017 by A. Ombwayo J, dealt with an application by Mr. Njuguna for the plaintiff to produce a photocopy of a receipt (PMFI.5) as evidence in court, the original having been issued in Nairobi and since lost. Counsel for the opposing party, Mr. Omwenga, objected that a notice to produce should first have been filed under section 69 of the Evidence Act; Mr. Odongo relied on sections 68(1)(a) and 69, submitting that no notice to produce had been issued. The court recited sections 66 and 67 of the Evidence Act, which require documents to be proved by primary evidence subject to stated exceptions, and section 68, which governs proof of documents by secondary evidence. It found that the applicant had demonstrated the loss of the original receipt by producing a police abstract and an O.B. extract dated 29.10.2015. Because the loss-of-original basis for secondary evidence was engaged rather than the limb in section 68(1)(a), the section 69 notice requirement did not apply. The court allowed the plaintiff to rely on PMFI 5, to be produced in accordance with the law, and directed that PW1 be recalled to produce the document. No costs order was made. The ruling illustrates the exception to the primary-evidence rule where loss of the original is satisfactorily shown.

Key legal issues

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01

Whether secondary evidence of a lost receipt (photocopy PMFI.5) is admissible

Holding

The court allowed the plaintiff to rely on the photocopy because loss of the original was demonstrated, bringing the document within the exceptions to the primary-evidence rule in sections 67 and 68 of the Evidence Act

Reasoning

The court recited sections 66, 67 and 68 of the Evidence Act, which require documents to be proved by primary evidence subject to stated exceptions. The applicant showed the original was lost by producing a police abstract and an O.B. extract dated 29.10.2015. That demonstration engaged the exceptions in section 68 permitting secondary evidence of a lost document. Because section 69 notice is required only where reliance is placed on section 68(1)(a), and that limb was inapplicable, the absence of notice to produce did not bar the application.

p. 2
02

Whether failure to issue a notice to produce under section 69 defeated the application

Holding

No, because the notice requirement under section 69 applies only to secondary evidence tendered under section 68(1)(a), which was not the basis of this application

Reasoning

Mr. Omwenga opposed the application on the ground that a notice under section 69 of the Evidence Act should have been filed, and Mr. Odongo argued that no notice to produce was issued. The court held that section 69 is engaged only where secondary evidence is given under section 68(1)(a). Since the applicant relied on loss of the original rather than on that limb, the notice requirement fell away and the objection failed.

p. 2

Legal principles established

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  • Where the original of a document is lost, as demonstrated by a police abstract and O.B. extract, secondary evidence of the document may be given, and notice to produce under section 69 of the Evidence Act applies only where secondary evidence is tendered under section 68(1)(a)

Court orders

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  1. 1.The plaintiff is allowed to rely on PMFI 5 to be produced in accordance with the law
  2. 2.PW1 to be recalled to produce the document

Authorities

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Legislation

  • Law of Evidence Act (Evidence Act)section 66
  • Evidence Actsection 67
  • Evidence Actsection 68
  • Evidence Actsection 68(1)(a)
  • Evidence Actsection 69
Jurisdiction invoked
Not expressly stated; the matter was determined under the Law of Evidence Act (sections 66, 67, 68 and 69)

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, "Julia Wanjiru Kiiru (Suing As The Administratix Of The Estate Of The Late Jecinta Wangui Keiru v Doris Ochieng Oluoch & 5 others [2017] KEELC 3190 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3190/eng@2017-03-14

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