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ELCOtherEnvironment & Land Case 79 of 2010· [2021] KEELC 2 (KLR)

Lwangu v Ndote (Environment & Land Case 79 of 2010) [2021] KEELC 2 (KLR)

Environment and Land Court
10 November 2021
5,684 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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A Kitale court refused to accept a photocopied 1982 letter as land-sale evidence because the original was never traced or explained.

What this practically means

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Executive summary

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This is an interlocutory ruling delivered during the further hearing of a land suit filed on 23/9/2010 at the Environment and Land Court, Kitale. The plaintiff's second witness, PW2 John Lwangu Misoga, sought to produce in evidence a photocopy of a consent dated 6/5/2000 and a two-page letter dated 12/2/1982, which he alleged he authored as secretary to a meeting at which land was agreed to be sold to the plaintiff. Counsel for the defendant objected, arguing the documents were photocopies, that the witness was not their maker, that no notice to produce had been issued, and that the originals were unaccounted for. Plaintiff's counsel relied on section 70 of the Evidence Act, contending the witness authored and signed the letter. The court undertook a detailed exposition of the law on documentary evidence: primary versus secondary evidence, the best evidence rule, and the conditions in sections 66 to 70 of the Evidence Act for admitting secondary evidence. It held the witness failed to prove authorship by handwriting evidence under sections 48(1) or 50(1), failed to account for the original letter, issued no notice to produce, and did not bring himself within the exceptions in sections 68 and 69. It also noted that the document had earlier been abandoned by plaintiff's counsel, rendering related testimony hearsay. The court additionally recommended that the Rules Committee amend rule 28 of the Mutunga Rules to apply to all parties. The objection was upheld and the document was not admitted.

Key legal issues

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01

Proof of authorship/handwriting of a document

Holding

PW2 failed to prove he was the author of the letter; no handwriting expert was called, no person acquainted with the handwriting testified, and no evidence under section 90 was tendered

Reasoning

Section 70 of the Evidence Act requires that a signature or handwriting alleged to be a person's must be proved to be his. Proof may be by expert evidence under section 48(1), by a person acquainted with the handwriting under section 50(1), or via section 90 for documents over 20 years old. None was adduced. The face of the document suggested Zebedayo Ndote was the originator, and no minutes showed PW2 was the secretary who wrote it.

p. 6
02

Laying a basis for production of secondary evidence (photocopy)

Holding

The plaintiff did not lay any basis for production of a photocopy; the original's whereabouts were unexplained, no notice to produce was issued under section 69, and no evidence of loss or destruction was tendered

Reasoning

Section 68 of the Evidence Act permits secondary evidence only in defined circumstances. The witness did not explain where the original was, did not report loss to police or produce a Police Abstract and investigation findings, and did not demonstrate due diligence to trace the original. Discrepancies in the handwriting sizes between the two pages reinforced the need for the original.

p. 15
03

Effect of abandoning a document at trial

Holding

Once counsel abandoned the document, testimony regarding it remained inadmissible hearsay

Reasoning

The record showed that when objection was earlier raised to the production of the document, plaintiff's counsel stated 'I abandon the document'. Anything PW1 testified about it therefore amounted to hearsay unless it fell within exceptions to the rule against hearsay, per Kenneth Nyaga Mwige v Austin Kiguta & 2 others.

p. 15
04

Anomaly in rule 28 of the Mutunga Rules

Holding

Rule 28 refers only to order 3 rule 2 of the Civil Procedure Rules and omits documents accompanying defences; the court recommended the Rules Committee amend it to apply to all parties

Reasoning

Rule 28 of the Practice Directions on Proceedings in the Environment and Land Courts only cross-refers to order 3 rule 2, which concerns documents accompanying plaints. Order 7 rule 5 governs documents accompanying defences and counterclaims. Read literally the rule appears to bind only plaintiffs, which is an anomaly requiring amendment.

p. 9

Legal principles established

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  • Documentary evidence must be produced in primary form unless the party brings itself within the statutory exceptions permitting secondary evidence
  • Where a party fails to produce primary evidence, the document, however crucial, should not be accepted in evidence nor relied on by the court
  • Before secondary evidence of a document's contents is adduced, the party must prove existence, execution, loss and contents, in that order
  • A document admitted into evidence but not formally produced and proved remains inadmissible hearsay

Court orders

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  1. 1.The objection to the production of the photocopy of the letter dated 14/2/1982 is upheld
  2. 2.The document (PMFI 1 / PMF 6) shall not be produced/admitted in evidence

Authorities

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Legislation

  • Evidence Actsection 65(1)
  • Evidence Actsection 66
  • Evidence Actsection 67
  • Evidence Actsection 68
  • Evidence Actsection 69
  • Evidence Actsection 70
  • Evidence Actsection 35(1)(b)
  • Evidence Actsection 48(1)
  • Evidence Actsection 50(1)
  • Evidence Actsection 90
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure Rulesorder 3 rule 2
  • Civil Procedure Rulesorder 7 rule 5
  • Civil Procedure Rulesorder 11
  • Civil Procedure Rulesorder 16 rules 6 and 7
  • Practice Directions on Proceedings in the Environment and Land Courts (Mutunga Rules, Legal Notice No. 5178)rule 28

Cases cited (4)

  • Mansukhalal Jesang Maru v Frank Wafula
    [2021] eKLR
  • Kenneth Nyaga Mwige v Austin Kiguta & 2 others
    [2015] eKLR
  • Re Estate of Charles Ndegwa Kiragu alias Ndegwa Kiragu
    [2016] eKLR
  • R v Daye
    [1908] 2 KB 333
Jurisdiction invoked
Original trial jurisdiction of the Environment and Land Court (Practice Directions on Proceedings in the Environment and Land Courts applicable)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Lwangu v Ndote (Environment & Land Case 79 of 2010) [2021] KEELC 2 (KLR)", Case Analysis (2021). Environment & Land Case 79 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2/eng@2021-11-10

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