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ELCAllowedEnvironment & Land Case 35 of 2015· [2022] KEELC 3883 (KLR)

Barasa v Masinde (Environment & Land Case 35 of 2015) [2022] KEELC 3883 (KLR)

Environment and Land Court
28 July 2022
BOBOAZ N. OLAO
672 words in judgment
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The bottom line

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A Kenyan court allowed a land buyer to use a 1991 sale agreement as evidence even though the person who signed it had died.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Bungoma, delivered by Boaz N. Olao, Judge, on 28th July 2022 by electronic mail, determined an evidentiary dispute during trial. The plaintiff sought to produce the original land sale agreement dated 24th April 1991. Counsel for the defendant, Mr Wamalwa, had objected to the plaintiff producing it and insisted the maker, Vincent Wafula, do so. When the matter came up on 30th June 2022, counsel for the plaintiff, Mr Milimo, applied to have the agreement produced because Vincent Wafula had died. Mr Wamalwa objected on the ground that there was no evidence of the death and that other witnesses could be called in his place. The court, acting under Section 35(1) of the Evidence Act, noted that the proviso dispensing with the calling of the maker applies where the maker is dead. It found, on the plaintiff's uncontradicted testimony, that Vincent Wafula was deceased: the defendant, who was in court, did not deny the assertion, and although a death certificate would have been the best evidence, there was no suggestion the plaintiff was misleading the court, and the court had observed her testify and did not find her dishonest. The court held the agreement admissible on production of the original document and ordered that the plaintiff be recalled at the next hearing on 20th September 2022 to produce it as part of her evidence. No costs order was made.

Key legal issues

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01

Admissibility of a documentary statement where the maker is deceased (Section 35(1) Evidence Act)

Holding

The land sale agreement dated 24th April 1991 is admissible on production of the original document notwithstanding the maker's death, as the exception to calling the maker as a witness is satisfied.

Reasoning

The court applied Section 35(1) of the Evidence Act, which ordinarily requires the maker of a statement in a document to be called as a witness. The proviso dispenses with that requirement where the maker is dead. The court was satisfied on the plaintiff's testimony, uncontradicted by the defendant who was present in court, that Vincent Wafula had passed on. It noted a death certificate would have been best but found no reason to disregard unchallenged evidence from a witness the court observed testifying and found not dishonest.

p. 2

Legal principles established

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  • Under Section 35(1) of the Evidence Act, the requirement that the maker of a statement be called as a witness need not be satisfied where the maker is dead, and a statement made by a deceased maker with personal knowledge of the matters is admissible on production of the original document.

Court orders

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  1. 1.The sale agreement dated 24th April 1991 may be produced as evidence in accordance with Section 35(1) of the Evidence Act
  2. 2.The plaintiff is to be recalled at the next hearing on 20th September 2022 for purposes of producing the agreement as part of her evidence

Authorities

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Legislation

  • Evidence ActSection 35(1)
Jurisdiction invoked
Original trial jurisdiction of the court over the suit; application governed by Section 35(1) of the Evidence Act

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, "Barasa v Masinde (Environment & Land Case 35 of 2015) [2022] KEELC 3883 (KLR)", Case Analysis (2022). Environment & Land Case 35 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3883/eng@2022-07-28

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