Gitata & others v Nairobi County Government & 4 others (Environment & Land Case 311 of 2010) [2023] KEELC 299 (KLR)
The bottom line
#A Kenyan court refused to delete evidence a party had failed to object to when it was first presented, penalising late objections with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction to expunge testimony and an exhibit already admitted in ongoing proceedings
The court held it lacked jurisdiction; acceding to the request would amount to sitting on appeal on its own conscious orders, and the applicant, having participated in the proceedings without objection, was bound by them and estopped from seeking expungement.
PW2 testified and exhibit P5 was produced in the presence of the 2nd defendant's counsel, who did not object to its production and admission. Counsel's failure to object, even if due to ignorance of the law, engaged estoppel since ignorance of the law is no defence. Granting the application would amount to the judge sitting on appeal over his own decision made in accordance with the law, which the court held it had no jurisdiction to do.
Whether the applicant established a basis for expungement founded on alleged illegality and theft of exhibit P5
The applicant failed. The allegations of illegality and theft were serious charges of cognizable offences, deponed to incompetently by an advocate, unsupported by credible evidence, and in fact not raised even by the 1st defendant whose document was alleged to have been stolen.
Imputations of illegality and theft are contentious issues of fact and evidence which an advocate cannot depone to, per Kisya Investments and Magnolia. Under sections 107, 108 and 109 of the Evidence Act, the burden of proof lay on the applicant, and no credible or cogent evidence was laid. The court found the averments scandalous and alarmist and held that a court cannot act on unproven allegations.
Whether the cited authority of Okiya Omutatah Okoiti on Article 50(4) supported the application
No. That decision concerns admissibility of illegally obtained evidence in criminal trials under Article 50(4); it cannot apply to the post-admission expungement of evidence in a civil suit.
The Court of Appeal in Omutatah held that Article 50(4) of the Constitution displaced the old common-law position in Kuruma son of Kaniu but applies only to criminal trials and the rights of accused persons. Admissibility of documentary evidence in civil matters is governed by the Evidence Act. The decision therefore did not fortify the applicant's case and could not apply ex-post admission of the evidence.
Legal principles established
#- Jurisdiction is everything; a court without jurisdiction is divested of competence to make any order, and its determinations are a nullity ab initio.
- A party and counsel who participated in proceedings and did not object to the production of an exhibit when the opportunity existed are estopped from later seeking its expungement.
- It is not competent for a party's advocate to depone to contentious evidentiary facts; an advocate cannot be both counsel and witness in the same case.
- Article 50(4) of the Constitution on illegally obtained evidence applies to criminal trials and not civil suits; admissibility of documentary evidence in civil matters is governed by the Evidence Act.
- He who alleges must prove; a court cannot act on unproven allegations of illegality or theft (sections 107, 108 and 109 of the Evidence Act).
Court orders
#- 1.The notice of motion application dated September 23, 2022 be and is hereby dismissed with costs to the plaintiffs/respondents only.
- Jurisdiction invoked
- Inherent jurisdiction of the High Court in an ongoing suit (no specific constitutional or statutory provision invoked as the basis of the court's jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitata & others v Nairobi County Government & 4 others (Environment & Land Case 311 of 2010) [2023] KEELC 299 (KLR)", Case Analysis (2023). Not stated in the extracted judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/299/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.