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ELCAllowedLand Case No. 17 of 2014· [2018] KEELC 3921 (KLR)

Richard Toroitich v Mike K Lelmet & 3 others [2018] KEELC 3921 (KLR)

Environment and Land Court
8 February 2018
349 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed you can use a copy of a lost document as evidence if you explain what happened to the original.

What this practically means

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Executive summary

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This is an interlocutory ruling by Mwangi Njoroge J of the Environment and Land Court at Kitale in Land Case No. 17 of 2014, a first-instance land dispute between Richard Toroitich as plaintiff and the Lelmet family defendants. The ruling addressed an objection to the plaintiff's reliance on a copy of an agreement dated 2nd April 2003 on the ground that it was not an original. The court restated the rule that primary evidence must ordinarily be relied on in proceedings except in the specified exceptions in Section 35 of Cap 80, identifying one exception as circumstances where a basis has been laid for the production of secondary evidence, in which event the court may, depending on the circumstances, admit a copy. The plaintiff explained that the file containing the original agreement was lost while he was travelling from Mombasa where he works and could not be traced, that copies of the document had been relied on in the proceedings without any demur from the defendants, and that the copy was a replica of the document filed with the plaint on 31st January 2014. The court also noted that the defendants' statement filed on 24th April 2014 did not challenge the existence of the agreement; the allegation was only that consideration failed. Considering that much time would be spent locating the original, the court exercised its discretion and admitted the copy as P.Exhibit 1. No costs order was made in the ruling; the substantive suit remained for determination.

Key legal issues

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01

Admissibility of secondary evidence (a copy of an agreement) where the original is lost

Holding

The court admitted the copy of the agreement dated 2/4/2003 as P.Exhibit 1, holding that loss of the original and reliance on copies without demur justified admission of secondary evidence in its discretion

Reasoning

The rule requires primary evidence except in specified exceptions under Section 35 of Cap 80. The plaintiff explained that the file containing the original agreement was lost while he travelled from Mombasa where he works and could not be traced. Copies of the same document had been relied on in the proceedings without any objection from the defendants, and the defendants' statement did not challenge the agreement's existence, only alleging failure of consideration. Locating the original would consume much court time. The court therefore exercised its discretion to admit the copy.

p. 2
02

Effect of absence of challenge to the existence of a document in the opposing party's statement

Holding

The absence of any challenge to the existence of the agreement in the defendants' statement supported its admission; the dispute was over consideration, not existence

Reasoning

The court examined the statement of Mike Kiptoo Lelmet filed on 24/4/2014 and found no challenge to the existence of the said agreement; what was alleged was that consideration failed in respect of the agreement. This absence of demur, together with the prior reliance on copies in the proceedings without objection, weighed in favour of admitting the copy. The court also noted the copy was a replica of what was filed alongside the plaint on 31/1/2014.

p. 2

Legal principles established

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  • Primary evidence must generally be relied on in proceedings, except in specified exceptions under Section 35 of Cap 80, one of which is where a basis has been laid for the production of secondary evidence, in which case the court may in its discretion admit a copy

Court orders

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  1. 1.The court exercised its discretion and admitted a copy of the agreement dated 2/4/2003 as evidence in the case, to be marked as P.Exhibit 1

Authorities

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Legislation

  • Evidence Act (Cap 80)Section 35
Jurisdiction invoked
First-instance civil suit before the Environment and Land Court; evidential discretion under Section 35 of Cap 80 (Evidence Act) invoked for admission of secondary evidence

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, "Richard Toroitich v Mike K Lelmet & 3 others [2018] KEELC 3921 (KLR)", Case Analysis (2018). Land Case No. 17 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3921/eng@2018-02-08

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