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ELCAllowedNot stated in the extract (Originating Summons dated September 4, 2014)· [2023] KEELC 418 (KLR)

Kinyanjui & another v Joreth Limited & 5 others (Environment and Land Case Civil Suit 1189 of 2014) [2023] KEELC 418 (KLR)

Environment and Land Court
2 February 2023
4,666 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court confirmed that a dead witness's signed statement can still be used as evidence in a land case.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Nairobi (Oguttu Mboya J) determined an oral application by the Plaintiff in an adverse possession suit over LR No 13330/260 (IR No 148466), Thome Farmers No 5, Garden Estate, Nairobi. The Plaintiff sought to admit the witness statement and attached documents of Kimani Kahiro, Advocate, who had recorded a statement at the filing of the Originating Summons in 2014 but died on October 1, 2022 before testifying. The Plaintiff invoked Sections 33(b) and (f) and 35 of the Evidence Act, arguing the statement was made in the discharge of professional duty and that the Defendants, having been served with the statement and having responded to it, would suffer no prejudice. The 1st and 2nd Defendants opposed, contending the statement fell outside the Section 33 exceptions since the deceased acted for Thome Farmers No 5, and that admission without cross-examination would infringe their right to a fair hearing under Article 50(1) of the Constitution. The court framed two issues: admissibility and prejudice. It held the statement and documents admissible, finding they contained information the deceased acquired in the ordinary course of his practice and in the discharge of professional duty relating to the mother title, a fact confirmed by the 1st Defendant's own witness. It further held admission does not confer probative value; the court would evaluate the un-cross-examined evidence with caution and the Defendants could address submissions on its weight, so no undue prejudice arose. The application was allowed, the statement and documents admitted, and costs ordered to abide the outcome of the main suit.

Key legal issues

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01

Admissibility of a deceased advocate's witness statement and documents under Sections 33(b) and 35 of the Evidence Act

Holding

The statement and attached documents are admissible because they were made in the ordinary course of the advocate's business and in the discharge of his professional duty, and the maker is dead and cannot be procured

Reasoning

The court found that the contents of the statement relate to information that came to the deceased advocate's knowledge in handling conveyancing for the mother title LR No 13330, confirmed by the 1st Defendant's own witness, Njeri Kariuki Advocate. This brings the statement within the Section 33(b) exception (statements made in the ordinary course of business or discharge of professional duty) and within Section 35, which dispenses with the requirement to call the maker where he is dead or cannot be found. The court drew support from the Fleur Investments decision.

p. 7
02

Whether admission of the statement prejudices the Defendants' right to a fair hearing under Article 50(1) of the Constitution

Holding

No undue prejudice arises; admission does not confer probative value, and the court will evaluate the statement with caution while the Defendants may make submissions on its credibility

Reasoning

The court accepted that cross-examination is a fundamental tenet of fair hearing but held that admission and probative value are distinct questions. Un-cross-examined evidence is weighed with circumspection, and Defendants may contest weight through submissions. The court further held that excluding the statement would itself prejudice the Plaintiff, who had disclosed the witness from the outset, and that the court's duty is to admit all relevant available evidence in pursuit of substantive justice, subject to Article 50(4).

p. 8

Legal principles established

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  • Where a witness who recorded a statement dies before testifying, the statement and documents signed by the witness are admissible under Sections 33 and 35 of the Evidence Act where made in the ordinary course of business or in the discharge of professional duty
  • Admission of an un-cross-examined statement does not by itself confer probative value; the court evaluates such evidence with caution and the adverse party may address submissions on its weight

Court orders

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  1. 1.The oral application is allowed
  2. 2.The witness statement of Mr Kimani Kahiro, Advocate (now deceased) and the attached documents thereto are admitted as evidence on behalf of the Plaintiff
  3. 3.Costs shall abide the outcome of the main suit

Authorities

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Legislation

  • Evidence Act, Chapter 80 Laws of KenyaSection 33(b)
  • Evidence Act, Chapter 80 Laws of KenyaSection 33(a)
  • Evidence Act, Chapter 80 Laws of KenyaSection 33(f)
  • Evidence Act, Chapter 80 Laws of KenyaSection 35
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 50(4)

Cases cited (4)

  • Samson Maina Kamau versus Panari Hotel
    (2021) eKLR
  • Fleur Investments Ltd versus Permanent Secretary Ministry of Roads & Another
    (2021) eKLR
  • Mwihaki versus Kigui & 2 Others
    Environment and Land Court Case Number 572 of 2015 (2022) KE ELC 2771 (KLR)
  • Joseph Mwangi Wahome versus Housing Finance Company of Kenya Ltd & Another
    (2019) eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; oral application under Sections 33 and 35 of the Evidence Act, Chapter 80 Laws of Kenya

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, "Kinyanjui & another v Joreth Limited & 5 others (Environment and Land Case Civil Suit 1189 of 2014) [2023] KEELC 418 (KLR)", Case Analysis (2023). Not stated in the extract (Originating Summons dated September 4, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/418/eng@2023-02-02

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