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ELCOtherNot stated in judgment· [2021] KEELC 3347 (KLR)

Silvana Karimi Chabari & 3 others v John Muthuri (Administrator of the Estate of M’ananua M’itere) & another [2021] KEELC 3347 (KLR)

Environment and Land Court
12 May 2021
LMLucy N. Mbugua
578 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Meru blocked the use of a deceased witness's statement because it was really about land ownership, not family relationships.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Meru, delivered by Hon. Lucy N. Mbugua, ELC Judge, on 12 May 2021, determined an application by the defendant to produce as evidence the statement of a deceased witness, Murungi Mwamba, dated 12 September 2012. The application was made after DW4 concluded his testimony, on the basis that the witness had passed on and that the Evidence Act permits production of a deceased person's statement relating to the relationship of the parties. Plaintiffs' counsel, Mr. Mwanzia, objected, arguing that the veracity of a witness statement must be tested in cross-examination in civil proceedings, that the defence had ample time to substitute another witness, and questioning who would produce, testify on, or be cross-examined on the statement. Defence counsel, Mr. Thangicia, relied on Section 2 of the Evidence Act and Section 33. The court reproduced Section 33(e), which admits statements of deceased persons relating to the existence of relationship by blood, marriage or adoption. Upon reviewing the statement in the defence bundle, the court found that although it made reference to relationship, this was marginal; the core content concerned how the disputed land came into the hands of the M'Ananua family, so the statement did not fall within the provision. The court further noted the statement was strikingly similar to that of DW3 Francis Muthuri M'Ituamwari, whose evidence had been tested by cross-examination. The application was disallowed. No costs order was made and the judgment does not state the case title or number.

Key legal issues

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Admissibility of a deceased witness's statement under Section 33(e) of the Evidence Act

Holding

The application was disallowed because the statement's core content concerned how the disputed land came into the M'Ananua family's hands, with relationship only a marginal reference, so it did not fall within Section 33(e)

Reasoning

The court reproduced Section 33(e) of the Evidence Act, which admits statements of deceased persons relating to the existence of relationship by blood, marriage or adoption where the maker had special means of knowledge. The court examined the statement and found that although it referred to relationship, that was marginal; the substance concerned the acquisition of the disputed land. It also noted the content was captured in the testimony of DW3, who was cross-examined.

p. 2

Legal principles established

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  • A deceased person's statement is admissible under Section 33(e) of the Evidence Act only where it relates to the existence of a relationship, not where relationship is a marginal issue and the core content concerns other matters

Court orders

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  1. 1.The application made by defence counsel to produce the deceased witness's statement as evidence was disallowed

Authorities

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Legislation

  • Evidence ActSection 33(e)
  • Evidence ActSection 2
Jurisdiction invoked
Not stated; first-instance land dispute before the Environment and Land Court

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, "Silvana Karimi Chabari & 3 others v John Muthuri (Administrator of the Estate of M’ananua M’itere) & another [2021] KEELC 3347 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3347/eng@2021-05-12

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