Tulip Properties Limited v Mohamed Koriow Nur & 6 others [2018] KEELC 415 (KLR)
The bottom line
#A Kenyan court confirmed that a signed counterpart of a land transfer counts as strong original evidence, even when the main document is missing.
What this practically means
#Executive summary
#Key legal issues
#Whether a counterpart of a transfer is primary or secondary evidence
A counterpart of a document executed in counterpart is primary evidence as against the parties executing it under section 65(2) and (3) of the Evidence Act, and is admissible under section 67
The court held that the counterpart of the transfer dated 5th June 1996 falls squarely within section 65(2) and (3) of the Evidence Act as primary evidence, while the photocopy of the original transfer in the plaintiff's bundle was merely secondary evidence. Relying on the Court of Appeal decision in Cyprian Awiti, the court found the counterpart admissible under section 67 without the need to lay a foundation for secondary evidence under section 68.
Whether PW3 was competent to produce the counterpart though he did not execute it
PW3, being in possession of the counterpart, was the person well placed to produce it; the maker/executer need not produce a statutory document prepared by advocates
The court rejected the 1st defendant's argument that only Arap Moi or the 3rd and 4th defendants could produce the document. It noted the document was prepared by Sobhag H. Shah & V. Goswami Advocates, not the parties. Since PW3 held the counterpart after it was returned to him by those advocates following registration, he was the proper person to produce it and answer questions about it. His admission of it did not bar the defendants from contesting authenticity.
Legal principles established
#- Where a document is executed in several parts or in counterpart, each part or counterpart constitutes primary evidence under sections 65(2) and (3) of the Evidence Act
- Admission of a document in evidence does not preclude the opposing party from challenging its authenticity; the burden of proving execution, stamping and registration remains on the party producing it
Court orders
#- 1.The objection by the 1st defendant in the main suit against the production in evidence of the counterpart of transfer dated 5th June, 1996 is dismissed
- 2.Costs of the objection to be in the cause
- Jurisdiction invoked
- Original civil jurisdiction over the pending suit (Evidence Act, Chapter 80 Laws of Kenya governs admissibility ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tulip Properties Limited v Mohamed Koriow Nur & 6 others [2018] KEELC 415 (KLR)", Case Analysis (2018). Not stated in the ruling (evidence objection in a pending suit filed approximately 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/415/eng@2018-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.