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ELCAllowedNot stated in the judgment (Notice of Motion dated 23rd November 2021)· [2022] KEELC 2127 (KLR)

Paul Nduati Mwangi v Stephen Ngotho Mwangi & 9 others [2022] KEELC 2127 (KLR)

Environment and Land Court
20 January 2022
2,158 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By a Notice of Motion dated 23rd November 2021, the Plaintiff, Paul Nduati Mwangi, sought leave to produce photocopies of two Sale Agreements dated 8th May 2004 and 11th June 2007 in place of lost originals at the hearing of his land suit. He swore that the originals, kept in a box at his house, were discovered missing on 25th October 2021 after thorough searches, and that his advocate also did not have them, copies being on the court file and with the defendants' advocates. The Defendants, through a replying affidavit of the 3rd Defendant Ignatius Irungu Mwangi, opposed the application, contending the sale contracts are denied, the loss was never raised since the suit was filed in 2014, no police report proved the loss, and the plaintiff's advocate's copies would suffice; they warned of prejudice through uncertified photocopies concerning family land. They relied on Rakesh Mohindra vs Anita Beri, Lee vs Tambag and Mary Nyawira Karira vs Beethoven Kiragu Ndegwa on laying a factual foundation before leading secondary evidence. The plaintiff invoked Section 68(1)(c) of the Evidence Act, Article 50(1) on fair hearing and the availability of cross-examination to test authenticity. L. Gacheru J held that although primary evidence is the best evidence, the statute permits secondary evidence where the original is lost without the party's default; the defendants had known of the agreements since 2014; production of secondary evidence is not proof of the case and causes no prejudice since authenticity can be tested at trial. Allowing production accorded a fair hearing and avoided upholding a technicality contrary to Article 159(2)(d). The application was allowed entirely in terms of prayer 1 with costs to the plaintiff.

Key legal issues

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01

Whether leave to produce secondary evidence of the two Sale Agreements should be granted

Holding

The application was merited; the law permits secondary evidence where the original is lost without the party's default.

Reasoning

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.

p. 3
02

Whether absence of a police report defeats the claim of loss

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to the Plaintiff/Applicant

Authorities

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Legislation

  • Evidence ActSection 68(1)(c)
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Rakesh Mohindra vs Anita Beri & Others
    Supreme Court of India Appeal No. 13361 of 2015
  • Mary Nyawira Karira vs Beethoven Kiragu Ndegwa
    Succession Cause No 420 of 2013
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.