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ELCOtherEnvironment & Land Case 283 of 2017· [2023] KEELC 16007 (KLR)

Waweru Macharia v Francis Murigu Murage

Environment and Land Court
9 March 2023
FNFM Njoroge
546 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is an interlocutory ruling by FM Njoroge, J of the Environment and Land Court at Nakuru in a land suit instituted in 2017 (and, per counsel, relating to events some 19 years prior). During the plaintiff's case, counsel for the defendant objected to PW2 - a representative of the deceased original plaintiff's estate - producing a written agreement as an exhibit. The objections were threefold: the pleadings reflected that the original plaintiff relied on an oral agreement, so a written agreement would change the character of the suit; the document was a copy with no explanation of the whereabouts of the original, contrary to Section 66 of the Evidence Act; and the agreement referenced parcel number 7912/3 rather than 9712/3, with PW2 allegedly not competent to produce it. Plaintiff's counsel responded that PW2 had found the agreement amongst the deceased's documents, testified as its custodian, and that the law permits another person to produce a document where the owner is deceased. The court held that a sufficient foundation had been laid for production, that PW2 could produce the agreement as custodian, and that the parcel number discrepancy was a matter for cross-examination and final submissions rather than a bar to admissibility. The court allowed production, marking the agreement as P. Exh.5(d), and directed a mention on 16 March 2023 for fixing a hearing date. No costs order was made.

Key legal issues

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01

Competence of a custodian witness to produce a deceased person's document

Holding

PW2, as representative of the deceased's estate who found the agreement amongst his documents, may produce it

Reasoning

The court found that a proper foundation had been laid: PW2 testified she found the agreement amongst the deceased original plaintiff's possessions and represents his estate. Counsel for the plaintiff argued she is a custodian and the law allows another person to produce a document where the maker/owner is deceased. The court accepted this and overruled the objection to production.

p. 2
02

Effect of wrong parcel number on the agreement

Holding

The discrepancy in the parcel number is a matter for cross-examination and submissions, not a bar to production

Reasoning

The defendant argued the agreement related to parcel 7912/3 and not 9712/3. The court held that this goes to the weight and authenticity of the document, to be tested in cross-examination and addressed in final submissions, rather than being determined at the point of production.

p. 2

Legal principles established

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  • A person in whose custody a document is found, including a representative of a deceased person's estate, may produce it as evidence

Court orders

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  1. 1.The production of the agreement by PW2 is allowed and it is to be marked as P. Exh.5(d)
  2. 2.The suit to be mentioned on March 16, 2023 for fixing of a hearing date

Authorities

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Legislation

  • Evidence ActSection 66
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (suit instituted in 2017)

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, "Waweru Macharia v Francis Murigu Murage", Case Analysis (2023). Environment & Land Case 283 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16007/eng@2023-03-09

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