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ELCOtherNot stated in the excerpt (part-heard suit, Environment and Land Court, Thika)· [2023] KEELC 16 (KLR)

Njoroge v Archdiocese of Nairobi Kenya Registered Trustees (Environment & Land Case 263 of 2017) [2023] KEELC 16 (KLR)

Environment and Land Court
12 January 2023
GKG K Kemei
1,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a witness cannot produce official letters they neither wrote nor received, so the defendant must find a proper witness.

What this practically means

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Executive summary

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In this part-heard land suit before the Environment and Land Court at Thika, the plaintiff holds title to LR No 76/32 and seeks eviction orders for trespass, while the defendant contends the land was public land set aside as a community centre for Thindigua estate residents. During the defence hearing, the defendant sought, by an unopposed application dated March 2, 2022, to recall DW1, surveyor James Kamwere Muriuki, to produce a supplementary list of documents including two letters from the Commissioner of Lands dated November 26, 1991 and May 27, 1994 addressed to Thindigua Co Ltd approving subdivision and change of user. When DW1 was recalled on September 27, 2022, the plaintiff objected on the ground that DW1 was neither the maker nor custodian of the two letters. The defendant argued the unopposed application had settled the issue. The court reviewed sections 35, 38 and 39 of the Evidence Act, which permit production of documentary and public-record evidence subject to conditions, including that the maker be called unless dead, untraceable, incapable, or attendance would cause unreasonable delay or expense. The court found the application did not specify the documents, so the earlier unopposed order did not preclude the objection. Holding that DW1 neither authored nor received the letters, and that no evidence showed the Commissioner of Lands' office was unavailable to testify, the court upheld the objection, stepped DW1 down, and allowed the defendant to avail an appropriate witness. Costs were awarded in the cause.

Key legal issues

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01

Competence of a witness to produce public documents

Holding

DW1 was not competent to produce the Commissioner of Lands' letters because he neither authored nor was addressed to, nor was custodian of, them

Reasoning

The court held that while the Evidence Act ordinarily requires makers of documents to produce them, public documents enjoy exceptions under sections 35, 38 and 39. However, section 35's proviso for absence of the maker applies only where the maker is dead, cannot be found, is incapable of giving evidence, or attendance cannot be procured without unreasonable delay or expense. No such evidence existed regarding the Commissioner of Lands' office; DW1 could not competently answer questions on letters he neither made nor received.

p. 4
02

Effect of an unopposed application that did not specify the documents sought

Holding

The unopposed application dated March 2, 2022 did not bar the plaintiff's objection because it failed to identify the documents to be produced

Reasoning

The plaintiff argued he did not oppose the application because it did not specify the documents. The court agreed, holding the defendant's contention that the objection had effectively been determined by the earlier unopposed application was untenable, since the notice did not indicate the documents DW1 would be recalled to produce.

p. 4

Legal principles established

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  • A witness who is neither the maker nor custodian of a document is not competent to produce it in evidence
  • The proviso to section 35 of the Evidence Act excusing the maker's absence applies only where the maker is dead, cannot be found, incapable of giving evidence, or attendance cannot be procured without unreasonable delay or expense

Court orders

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  1. 1.Objection to production of the letters dated November 26, 1991 and May 27, 1994 upheld
  2. 2.DW1 stepped down to allow the defendant to substitute or avail the appropriate witness to produce the documents
  3. 3.Costs in the cause

Authorities

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Legislation

  • Evidence ActSection 35
  • Evidence ActSection 38
  • Evidence ActSection 39
Jurisdiction invoked
Original civil suit jurisdiction of the Environment and Land Court (suit concerning title, trespass and eviction over LR No 76/32)

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, "Njoroge v Archdiocese of Nairobi Kenya Registered Trustees (Environment & Land Case 263 of 2017) [2023] KEELC 16 (KLR)", Case Analysis (2023). Not stated in the excerpt (part-heard suit, Environment and Land Court, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16/eng@2023-01-12

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