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ELCPartially Allowed· [2019] KEELC 254 (KLR)

Anthony M. Nyamu & 12 others v Attorney General & 3 others [2019] KEELC 254 (KLR)

Environment and Land Court
9 December 2019
SOS. Okong'o
2,391 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This interlocutory ruling by the Environment and Land Court at Nairobi (S. Okong'o, Judge) determined an objection by the defendants to the production, by the 9th plaintiff (Elimojos Enterprises, a three-partner partnership), of photocopies of two letters of allotment relating to L.R No. 21725: one dated 10th May, 1996 originally issued to Rurago Ltd., and a replacement one dated 18th February, 2000 issued in the 9th plaintiff's name. PW6 (Elizabeth Wangui Mbugua) and PW10 (Morris Njuguna Mwirigi) testified that the originals were destroyed when PW10's office at the old Nation House caught fire on 23rd July, 2001, leaving only photocopies (PMFI 16 and PMFI 17). Defendants' counsel (Mr. Motari, Mr. Kairaria and Mr. Wahome) objected, arguing no proper basis for secondary evidence was laid, that PW10 was unsure whether the original was burnt, and that the police abstract did not list the letter of allotment. Applying sections 65, 66, 67 and 68 of the Evidence Act, the court held that secondary evidence is admissible where the original is destroyed or lost. It found a proper basis laid for PMFI 17 (the 1996 letter), dismissed the objection to it, but found PW6 and PW10 gave conflicting evidence on the whereabouts of the 2000 original - burnt or in the custody of partner Joseph Mwangi Munyua abroad - and upheld the objection to PMFI 16. Costs of the objection were to be in the cause. Ruling delivered on 9th December 2019 at Nairobi.

Key legal issues

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01

Admissibility of secondary evidence where the original was destroyed by fire

Holding

A proper basis was laid for the photocopy of the letter of allotment dated 10th May, 1996; the objection to it was dismissed

Reasoning

Both PW6 and PW10 corroborated that the original letter of allotment dated 10th May, 1996 was kept in PW10's office at old Nation House, which caught fire on 23rd July, 2001, and that only a photocopy survived. Section 68(1)(c) of the Evidence Act permits secondary evidence where the original is destroyed or lost, so the photocopy was admissible.

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02

Admissibility of secondary evidence where the whereabouts of the original is uncertain

Holding

No basis was laid for producing the photocopy of the letter of allotment dated 18th February, 2000; the objection was upheld

Reasoning

PW6 said the original was kept by partner Joseph Mwangi Munyua who was out of the country, while PW10 said it was burnt in his office. Because of this conflict, it could not be established that the original was destroyed or lost, and section 68(1)(c) was not satisfied. Secondary evidence was therefore inadmissible.

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Legal principles established

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  • Secondary evidence of a document may be given where the original has been destroyed or lost and the party cannot, without default or neglect, produce it in reasonable time
  • A party seeking to rely on secondary evidence must first lay a proper basis showing why the original cannot be produced

Court orders

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  1. 1.The defendants' objection to the production in evidence of a photocopy of the letter of allotment dated 10th May, 1996 (PMFI 17) is dismissed
  2. 2.The defendants' objection to the production in evidence of a photocopy of the letter of allotment dated 18th February, 2000 (PMFI 16) is upheld
  3. 3.The costs of the objection to be in the cause

Authorities

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Legislation

  • Evidence Act, Chapter 80 Laws of KenyaSection 65(1)-(4)
  • Evidence Act, Chapter 80 Laws of KenyaSection 66
  • Evidence Act, Chapter 80 Laws of KenyaSection 67
  • Evidence Act, Chapter 80 Laws of KenyaSection 68(1) and (2)
Jurisdiction invoked
Original civil suit before the Environment and Land Court; determination of an evidentiary objection arising in the course of trial under the Evidence Act, Chapter 80 Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Anthony M. Nyamu & 12 others v Attorney General & 3 others [2019] KEELC 254 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/254/eng@2019-12-09

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