Lwangu v Ndote (Environment & Land Case 79 of 2010) [2021] KEELC 2 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Proof of authorship/handwriting of a document
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
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.
Laying a basis for production of secondary evidence (photocopy)
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
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.
Effect of abandoning a document at trial
Once counsel abandoned the document, testimony regarding it remained inadmissible hearsay
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.
Anomaly in rule 28 of the Mutunga Rules
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
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.
Legal principles established
#- 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
#- 1.The objection to the production of the photocopy of the letter dated 14/2/1982 is upheld
- 2.The document (PMFI 1 / PMF 6) shall not be produced/admitted in evidence
- Jurisdiction invoked
- Original trial jurisdiction of the Environment and Land Court (Practice Directions on Proceedings in the Environment and Land Courts applicable)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Amayi v Kuya[2023] KEELC 18836 (KLR)19 Jul 2023
- Kiragu & another v Njoka (Sued as the Administrator of the Estate of Njoka wa Kioriah)[2023] KEELC 17827 (KLR)8 Jun 2023applied
- Sofie Feis Caroline Lwangu v Benson Wafula Ndote [2022] KEELC 986 (KLR)[2022] KEELC 986 (KLR)2 Mar 2022applied
Cite this brief
#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.