Paul Nduati Mwangi v Stephen Ngotho Mwangi & 9 others [2022] KEELC 2127 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a landowner to use photocopies of lost sale agreements in court, confirming originals aren't always required.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to produce secondary evidence of the two Sale Agreements should be granted
The application was merited; the law permits secondary evidence where the original is lost without the party's default.
The court found the best evidence is primary evidence, but Section 68(1)(c) of the Evidence Act permits secondary evidence where the original is lost without default. The originals were allegedly lost from a box at home despite frantic searches. The defendants were aware of the agreements since 2014, having raised a preliminary objection involving them. Prejudice is cured by cross-examination at trial, and constitutional guarantees of fair hearing and the overriding objective support admission.
Whether absence of a police report defeats the claim of loss
The court did not require a police report; proof on a balance of probabilities suffices and the loss was accepted on the applicant's affidavit evidence.
The defendants argued that no report to police or police abstract proved the alleged loss, relying on Indian and Kenyan authorities requiring proof of loss before secondary evidence is admitted. The court nonetheless accepted the plaintiff's sworn explanation of the loss after thorough searches and held that production of secondary evidence is not proof of the case, so authenticity can be tested at trial through cross-examination.
Legal principles established
#- Secondary evidence may be given under Section 68(1)(c) of the Evidence Act where the original is lost or destroyed not through the default of the party intending to produce it.
- Production of a document, whether original or secondary, does not amount to proof of the case; the case must still be proved at trial.
Court orders
#- 1.The Plaintiff/Applicant is granted leave to rely on and produce photocopies of the Agreement dated 8th May 2004 and the Agreement dated 11th June 2007 in place of the originals at the hearing of the suit, on account of loss/misplacement of the originals
- 2.Costs of the application to the Plaintiff/Applicant
- Jurisdiction invoked
- Section 68(1)(c) of the Evidence Act, Section 3A of the Civil Procedure Act, Articles 50(1) and 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kiragu & another v Njoka (Sued as the Administrator of the Estate of Njoka wa Kioriah)[2023] KEELC 17827 (KLR)8 Jun 2023
Cite this brief
#Cite this brief
Caselaw, "Paul Nduati Mwangi v Stephen Ngotho Mwangi & 9 others [2022] KEELC 2127 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 23rd November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2127/eng@2022-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.