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ELCAllowedEnvironment & Land Case 79 of 2010· [2022] KEELC 986 (KLR)

Sofie Feis Caroline Lwangu v Benson Wafula Ndote [2022] KEELC 986 (KLR)

Environment and Land Court
2 March 2022
FNFRED NYAGAKA
6,170 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 confirmed that a document once abandoned in a case can be brought back, and the original beats any photocopy.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Kitale on an objection by the Defendant to the production, by the Plaintiff's second witness (PW2), of the original of a two-page agreement of sale dated 14/2/1982. The history: in 2011 the Plaintiff abandoned the document when the defence objected to a copy as an ambush for non-service; the suit was later dismissed for want of prosecution, reinstated and re-opened; on 28/9/2021 the court deemed a further list of documents containing the Agreement duly filed and served; on the same date PW2's attempt to produce a copy was objected to as secondary evidence, and by a ruling of 10/11/2021 the objection was upheld. At the resumed hearing on 25/1/2022 PW2 produced the original, prompting the present objection on grounds of prior abandonment, want of identification/marking, alleged discrepancies between the copy and the original, and the witness's supposed lack of capacity. The court framed four issues and resolved them all against the Defendant. It held that abandonment of a document does not permanently exclude it where it was later properly filed and served with leave, that the earlier ruling excluded only secondary evidence and did not bar production of the original, that marking for identification is good practice but not a statutory prerequisite, and that the maker of a document is the most competent person to produce it. The court compared the original and the copy and found them identical except for photocopier-enlarged font size. The objection was overruled, PW2 was allowed to produce the original, the suit was to proceed from where PW2's testimony had reached, and costs were awarded to the Plaintiff against the defendants.

Key legal issues

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01

Whether an abandoned document can be reintroduced in evidence

Holding

Yes. The abandonment was redeemed by the subsequent filing and serving of a further list of documents deemed duly filed and served with the court's leave; the document formed part of the record and the plaintiff could adduce evidence on it within the rules of evidence.

Reasoning

The court reasoned that 'abandon' in the 2011 context meant leaving production midway, not rejecting the document or the oral evidence about it. The defendant had due notice after the 28/09/2021 ruling deeming the list filed and served, and did not appeal or seek review. Applying by analogy the abandoned-pleadings doctrine andArticle 159(2)(d), the court held that abandonment does not bar revisiting the same evidence where no prejudice is shown and the adverse party can still challenge it.

p. 3
02

Whether a party is precluded from later producing the original after production of a copy was refused

Holding

No. The 10/11/2021 ruling only excluded secondary evidence for want of laid basis; it did not bar production of the original once traced.

Reasoning

The court compared the original with the photocopy in the presence of counsel and found them replicas in all respects, with only the photocopier-enlarged font size on page two differing. Judicial notice was taken that photocopy machines can enlarge copies. The witness was the maker and author of the document in his own handwriting, satisfying the best evidence rule; the defence's objections were found to be without merit or prejudice.

p. 4
03

Whether a maker may produce a document not identified/marked by the party calling him

Holding

Yes. No law prescribes the order of witnesses or requires marking before production; a competent maker-witness may produce a document even before the party testifies.

Reasoning

Relying on Hagos Birikti and Stamm v Tiwi Beach Hotel, the court held a plaintiff need not testify first or at all; any competent witness may prove the case. Kenneth Nyaga Mwige establishes marking is only for identification and has no relation to proof. Since the document was filed and served, marking was not mandatory before PW2 produced it, and marking cannot affect admissibility through a competent witness.

p. 5

Legal principles established

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  • Abandonment of a document in the course of testimony does not permanently bar its reintroduction in evidence, especially where it is later properly filed and served with the court's leave.
  • Marking a document for identification is not a statutory prerequisite to production; a competent witness may produce a document not marked by the party calling him.
  • The maker of a document who satisfies the evidentiary requirements may produce the original even where an earlier objection to a copy was upheld, absent prejudice to the opposing party.

Court orders

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  1. 1.The plaintiff's witness (PW2) is allowed to produce the original Agreement dated 14/2/1982 in evidence
  2. 2.The matter to proceed for further hearing forthwith from where PW2 had reached in his testimony
  3. 3.The defendants shall bear the cost of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Evidence ActChapter 80, Laws of Kenya
  • Evidence ActSection 35
  • Evidence ActSection 36(2)
  • Evidence ActSection 64(5) and (6)
  • Evidence ActSection 125
  • Civil Procedure RulesOrder 18 Rule 9
  • Civil Procedure RulesOrder 17 rule 2(1) (as cited in Julianne Ulrike Stamm v Tiwi Beach Hotel Ltd)

Cases cited (7)

  • Lwangu v Ndote (Environment & Land Case 79 of 2010) [2021] KEELC 2 (KLR)
    [2021] KEELC 2 (KLR)
  • Hagos Birikti Tewoldebrehen & Another v Evans Ihura & Another
    [2020] eKLR
  • Julianne Ulrike Stamm -vs- Tiwi Beach Hotel Ltd
    (1998) eKLR
  • Kenneth Nyaga Mwige v Austin Kiguta & 2 others
    [2015] eKLR
  • Des Raj Sharma -v- Reginam
    (1953) 19 EACA 310
  • Michael Hausa -v- The State
    (1994) 7-8 SCNJ 144
  • Republic v FME
    [2020] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; Article 159(2)(d) of the Constitution invoked on substantive justice

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Sofie Feis Caroline Lwangu v Benson Wafula Ndote [2022] KEELC 986 (KLR)", Case Analysis (2022). Environment & Land Case 79 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/986/eng@2022-03-02

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