Julius Otieno Onyango v James Mark Odhiambo [2020] KEELC 740 (KLR)
The bottom line
#A Kenyan court allowed a party to use a copy of a signed agreement as evidence without calling the person who wrote it.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of secondary evidence of the agreement dated 16/7/2016 without calling its maker
The Plaintiff, who witnessed the execution of the agreement, is qualified to produce it as secondary evidence without necessarily calling the maker, the document falling within sections 68(1), 66(e) and 35 of the Evidence Act
The court found that the original was in the possession of a person who is not a party to the proceedings and out of the court's reach. The Plaintiff was present during execution and so had seen the document, qualifying him under section 66(e). The Respondent was served with the agreement at the institution of the suit and suffers no ambush; any prejudice can be cured by calling the maker or seeking examination of disputed signatures.
Whether the Respondent's allegation of fraud in the crafting of the agreement defeats its production
No - the allegation of fraud goes to the weight of the evidence and can be tested by the Respondent calling the maker or referring the signatures for examination, not by barring production
The Respondent denied signing the agreement and alleged it was crafted fraudulently with the Applicant to imply a refund had been made. The court held that the claimed prejudice does not bar secondary production because the Respondent retains the ability to test the document: he may call Pascal Panyako Etyang as his own witness or have the disputed and questioned signatures examined.
Legal principles established
#- Secondary evidence of a document may be given where the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or a person out of reach of the court's process
- A witness to the execution of a document who has seen it may give oral accounts of its contents as secondary evidence under section 66(e)
- The maker of a statement in a document need not be called as a witness where his attendance cannot be procured without unreasonable delay or expense, and a party who has been served with the document is not ambushed and may test it by calling the maker or seeking examination of disputed signatures
Court orders
#- 1.The application dated 6th December 2019 is allowed in terms of prayers (1) and (2) by granting an order allowing the Plaintiff/Applicant to produce the agreement dated 16/7/2016
- 2.No costs awarded to either side
- Jurisdiction invoked
- Sections 36, 66, 68, 71 and 128 of the Evidence Act; sections 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Otieno Onyango v James Mark Odhiambo [2020] KEELC 740 (KLR)", Case Analysis (2020). Not stated in the judgment (application dated 6th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/740/eng@2020-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.