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ELCOtherLand Case No. 17 of 2014· [2018] KEELC 4014 (KLR)

Richard Toroitich v Mike K. Lelmet, Elisheba C. Lelmet, Pauline J. Lelmet & Esther J. Lelmet (suing as administrators of the estate of William Cheruiyot Lelmet [2018] KEELC 4014 (KLR)

Environment and Land Court
8 February 2018
MNMwangi Njoroge
286 words in judgment
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The bottom line

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A Kitale court allowed a plaintiff to testify about what a deceased person said about their land deal, so long as the account can be tested through cross-examination.

What this practically means

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Executive summary

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This is an interlocutory ruling (Ruling (2)) by the Environment and Land Court at Kitale in Land Case No. 17 of 2014, a first-instance land dispute between Richard Toroitich (plaintiff) and the Lelmet family defendants, who include administrators of the estate of the late William Cheruiyot Lelmet. An objection was raised to the plaintiff's evidence recounting statements the deceased made while alive, on the ground that such evidence is inadmissible hearsay. Mwangi Njoroge J held that the plaintiff and the deceased admittedly contracted over the suit land and were in communication, so the deceased's statements are relevant to the proceedings. The court acknowledged the rule against hearsay and its exceptions, and noted that the deceased cannot be called as a witness or cross-examined because he is deceased. It reasoned that the plaintiff's evidence of what the deceased said should be taken only at face value, not as gospel truth, and remains subject to cross-examination and verification. Being relevant and directly linked to the matters in issue, the evidence is admissible and may also provide explanations helpful to the court. The court overruled the objection, ordered that the evidence be tendered, and directed that the hearing proceed. The ruling was delivered at Kitale on 8 February 2018 in open court in the presence of the parties and their counsel. No costs order was made and no authorities were cited.

Key legal issues

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01

Admissibility of the deceased's statements repeated by the plaintiff

Holding

The objection was overruled and the evidence allowed to be tendered.

Reasoning

The court found that the plaintiff and the deceased had contracted over the suit land and were in communication, making the deceased's statements relevant. Since the deceased cannot be called as a witness or cross-examined, the evidence is treated not as gospel truth but as subject to verification through cross-examination of the plaintiff, and it may also explain matters the court would otherwise not understand. The court noted exceptions to the hearsay rule as admitted by Prof. Sifuna.

p. 1

Legal principles established

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  • Hearsay evidence of a deceased person's statements is admissible, subject to verification by cross-examination of the witness repeating it, where it is relevant and directly linked to the matters in issue, the rule against hearsay having exceptions

Court orders

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  1. 1.The objection to the evidence of what the deceased said is overruled
  2. 2.The said evidence shall be tendered
  3. 3.Hearing to proceed
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - as first-instance land suit; judgment does not state provision expressly

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, Elisheba C. Lelmet, Pauline J. Lelmet & Esther J. Lelmet (suing as administrators of the estate of William Cheruiyot Lelmet [2018] KEELC 4014 (KLR)", Case Analysis (2018). Land Case No. 17 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4014/eng@2018-02-08

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