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ELCPartially AllowedNot stated in the ruling· [2021] KEELC 3863 (KLR)

Sara Anyiso Martins v Syam Singh Bansal Bansi Ram [2021] KEELC 3863 (KLR)

High Court of Kenya
17 March 2021
914 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked a defendant from introducing late evidence after the plaintiff closed her case, but allowed documents already marked for identification.

What this practically means

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Executive summary

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This ruling by Antony Ombwayo J at Kisumu determines an oral application made on 3 March 2021 by counsel for the defendant seeking leave to file a witness statement of Sabina Adhiambo Mina and to introduce a further list of documents filed on 24 February 2021, after the plaintiff and her witnesses had testified and the plaintiff's case was closed. The plaintiff objected, contending she could not peruse or respond to the new material since she had already testified and been cross-examined. The court held that the Civil Procedure Rules require parties to disclose their cases - including verifying affidavits, witness statements and documents - under Orders 3, 7 and 11, to avoid ambush, delay and increased costs. While acknowledging the power under Order 18 rule 10, section 146 of the Evidence Act and Article 50(1) of the Constitution to allow additional evidence even after pre-trial, the court held that this power cannot be exercised in a vacuum and must not impede a fair trial. Applying the Supreme Court's reasoning in Raila Odinga v IEBC, the court found the late evidence to be an ambush and prejudicial to the plaintiff. However, documents already marked for identification (DMFI 2, 3, 4 and 5) could be produced by proper custodians without prejudice. The court allowed the defendant to rely on the documents marked for identification and to call an officer from Kohli, Patel & Raichura, L.G. Menezes or Winam Court to produce them, but expunged the witness statement and the further list of documents from the record, with costs in the cause.

Key legal issues

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01

Leave to introduce new evidence after closure of the opposing party's case

Holding

Refused except for documents already marked for identification; new witness statement and documents expunged

Reasoning

Parties must disclose their cases under Orders 3, 7 and 11 of the Civil Procedure Rules to avoid ambush, delay and increased costs. The defendant filed the witness statement and documents after the plaintiff and her witnesses had testified, without prior leave. Admitting them would ambush the plaintiff. However, documents already marked for identification can be produced by their custodians without prejudice.

p. 1
02

Scope of Section 147 of the Evidence Act

Holding

A person summoned to produce a document may prove its existence but cannot be cross-examined on its import

Reasoning

The court construed section 147 narrowly, holding that documents such as court orders, judgments and affidavits may be produced by non-makers in whose custody they are kept, to demonstrate they form part of the record, but such a producing witness cannot be cross-examined on the meaning or effect of the documents.

p. 1
03

Balancing fair trial against substantive justice

Holding

The court has a constitutional mandate under Article 50(1) to ensure a fair trial and may refuse evidence not exchanged with the rival party, but will allow it where no prejudice results

Reasoning

Following the Supreme Court's reasoning in Raila Odinga & 5 others v IEBC & 3 others, the court retains the power to disallow unexchanged evidence, yet must balance the interests of justice. Where the plaintiff would suffer no prejudice, documents previously marked for identification could be produced by proper custodians.

p. 2

Legal principles established

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  • The court retains power to allow additional witness statements and documents after pre-trial under Order 18 rule 10, section 146 of the Evidence Act and Article 50(1) of the Constitution, but the power must be exercised judiciously
  • Section 147 of the Evidence Act applies only to persons producing documents to demonstrate existence, not to give evidence on the import of the documents
  • The court may disallow evidence not exchanged with the rival party as contemplated by the Civil Procedure Rules to ensure a fair trial

Court orders

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  1. 1.Allowed the defendant to rely on documents that were marked for identification
  2. 2.Allowed the defendant to call an officer from the firm of M/s Kohli, Patel & Raichura, L.G. Menezes or Winam Court to produce the documents
  3. 3.Expunged the witness statement of Sabina Adhiambo Mima and the list of documents filed on 24/2/2021 from the record
  4. 4.Costs in the cause

Authorities

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Legislation

  • Evidence ActSection 147
  • Evidence ActSection 146
  • Civil Procedure Rules, 2010Order 3 rule 2
  • Civil Procedure Rules, 2010Order 7 rule 5
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure Rules, 2010Order 18 rule 10
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (1)

  • Raila Odinga & 5 others vs I.E.B.C and 3 others
    Supreme Court of Kenya Petitions Nos. 3, 4 and 5 of 2013 (2013) eKLR
Jurisdiction invoked
Order 18 rule 10 of the Civil Procedure Rules, 2010; Section 146 of the Evidence Act; Article 50(1) of the Constitution of Kenya

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, "Sara Anyiso Martins v Syam Singh Bansal Bansi Ram [2021] KEELC 3863 (KLR)", Case Analysis (2021). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3863/eng@2021-03-17

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