Sara Anyiso Martins v Syam Singh Bansal Bansi Ram [2021] KEELC 3863 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Leave to introduce new evidence after closure of the opposing party's case
Refused except for documents already marked for identification; new witness statement and documents expunged
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.
Scope of Section 147 of the Evidence Act
A person summoned to produce a document may prove its existence but cannot be cross-examined on its import
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.
Balancing fair trial against substantive justice
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
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.
Legal principles established
#- 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
#- 1.Allowed the defendant to rely on documents that were marked for identification
- 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.Expunged the witness statement of Sabina Adhiambo Mima and the list of documents filed on 24/2/2021 from the record
- 4.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.