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ELCAllowedNot stated in the judgment· [2018] KEELC 3712 (KLR)

Yasmin Anwar Yusuf v Samuel Gatugi Kimani & 2 Others [2018] KEELC 3712 (KLR)

Environment and Land Court
11 April 2018
EOE. O. Obaga
418 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court admitted a deceased land broker's written statement as evidence, confirming Section 33 of the Evidence Act keeps key testimony alive after a witness dies.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (E. O. Obaga, J) determined an interlocutory application by the plaintiff during further hearing of the suit. On 15th March 2018, counsel for the plaintiff, Mr Mbigi Njuguna, informed the court that his last witness, David Kagiri Muhia, had died on 27th July 2017, and applied under Section 33 of the Evidence Act to have the statement recorded from the deceased on 30th October 2015 admitted in evidence. Counsel for the defendants opposed, arguing prejudice since there would be no opportunity to cross-examine the deceased, and suggesting substitution with another witness. The court reasoned that the deceased was a land broker involved in the sale of the suit property to the plaintiff, and had acted as caretaker of the plot on the plaintiff's behalf. Applying Section 33(b), which admits statements made by deceased persons in the ordinary course of business, the court held the deceased recorded his statement in the ordinary course of his business as a broker mandated by the owner of the property, and that the vendor, Enid Nyambura Nyanja, had recorded a statement confirming the deceased's account. The court admitted the statement as part of the plaintiff's evidence. The ruling is dated 11th April 2018; no costs order was made.

Key legal issues

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01

Admissibility of a deceased witness's statement under Section 33 of the Evidence Act

Holding

The statement was admitted because the deceased was a land broker who recorded it in the ordinary course of business, and its contents were corroborated by the statement of the vendor, Enid Nyambura Nyanja.

Reasoning

The court found it undisputed that the witness died on 27th July 2017 after recording his statement on 30th October 2015. Applying Section 33(b), the court held that as a land broker mandated by the owner to effect the sale, the deceased made the statement in the ordinary course of business. The vendor's statement confirmed the deceased's account, and the court found no basis to exclude it despite the defendant's objection based on loss of cross-examination.

p. 2

Legal principles established

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  • A statement made by a deceased person in the ordinary course of business is admissible under Section 33(b) of the Evidence Act

Court orders

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  1. 1.The deceased witness's statement is admitted as part of the evidence of the plaintiff

Authorities

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Legislation

  • Evidence ActSection 33(b)
Jurisdiction invoked
Original civil jurisdiction of the court over the suit; application made under Section 33 of the Evidence Act

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, "Yasmin Anwar Yusuf v Samuel Gatugi Kimani & 2 Others [2018] KEELC 3712 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3712/eng@2018-04-11

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