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ELCPartially AllowedEnvironment & Land Case 568 of 2013· [2023] KEELC 17827 (KLR)

Kiragu & another v Njoka (Sued as the Administrator of the Estate of Njoka wa Kioriah)

Environment and Land Court
8 June 2023
FNFM Njoroge
4,577 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed land buyers to re-open their case and produce a copy of a lost sale agreement, but made them pay costs for filing a premature application.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (FM Njoroge, J) determined two interrelated applications by the plaintiffs in a long-running land sale dispute over LR No 10317/14. The plaintiffs, who bought 50 acres from the late Njoka Wakioriah and claim extra acreage for extra payments, sought to produce a copy of a sale agreement dated May 8, 2000 as secondary evidence, the original having been misplaced and the advocate who drafted it having disappeared in 2021. The first application (April 24, 2023) sought outright admission of the copy as secondary evidence; the second (May 9, 2023) sought re-opening of the plaintiffs' case, already closed on January 30, 2023, and recall of the 1st plaintiff to produce the document, which had been marked for identification at the hearing. The defendant opposed both, arguing the applications were an afterthought to plug gaps exposed in cross-examination, that no police abstract proved the loss, and that Sections 67 and 68 of the Evidence Act require primary evidence. The court framed a single issue: whether the case should be re-opened to allow production of the agreement as secondary evidence. Relying on Lwangu v Ndote and Kenneth Nyaga Mwige, it held that a document marked for identification may still be produced where no prejudice results, and that re-opening before the defence calls evidence causes none. The April 24 application was dismissed as premature; the May 9 application was allowed, with the case re-opened solely for production of the agreement and recall of the 1st plaintiff, costs of both applications borne by the plaintiffs, and the suit mentioned on June 14, 2023 for directions.

Key legal issues

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01

Whether a document previously marked for identification can be produced as secondary evidence upon re-opening of the plaintiff's case

Holding

Yes. The document was not new; it had been the backbone of the case all along, was marked for identification, and no objection to its production was recorded. Re-opening before the defence calls evidence causes no prejudice.

Reasoning

The court noted the agreement featured in a prior judgment and a 2004 ruling, and that the plaintiff simply failed to revisit it after marking for identification. Since the defence had not yet called evidence, the defendant could cross-examine on the document and would suffer no prejudice. Admission does not amount to proof; evidential questions remain for the hearing.

p. 8
02

Whether the application to admit the copy as secondary evidence outright (April 24, 2023) could be granted

Holding

No. The court cannot admit a document as secondary evidence without evidence being called and without the mutual consent of all parties; that application was dismissed.

Reasoning

Admission of secondary evidence requires a foundation laid through evidence under Sections 66, 67 and 68 of the Evidence Act. The proper course was to re-open the case and produce the document through the witness, which the second application sought.

p. 8

Legal principles established

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  • A document marked for identification may still be produced in evidence by the party at whose instance it was marked, provided production is not prejudicial to the other party by reason of the stage the hearing has reached
  • Re-opening a plaintiff's case before the defendant has called evidence is not prejudicial to the defendant, since admission of a document is not proof of it

Court orders

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  1. 1.The plaintiffs' case is re-opened for purposes limited only to the production as evidence of the copy of the sale agreement dated May 8, 2000, which was marked for identification
  2. 2.The 1st plaintiff, Titus Kiragu, shall be recalled for examination-in-chief, cross-examination and re-examination limited only to the production of the copy of the sale agreement dated May 8, 2000
  3. 3.The costs of both applications shall be borne by the plaintiffs
  4. 4.The suit shall be mentioned on 14/6/2023 for directions

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 3
  • Civil Procedure RulesOrder 18 Rule 10
  • Civil Procedure RulesOrder 51 Rule 1
  • Evidence ActSections 35, 66, 67, 68, 69, 79, 146(4)

Cases cited (11)

  • Paul Nduati Mwangi v Stephen Ngotho Mwangi & 9 others
    [2022] eKLR

    Support for admission of secondary evidence of a lost original

  • Jemima Moraa Sobu v Trans National Bank Limited
    [2016] eKLR

    Support of plaintiffs' arguments on secondary evidence

  • Cannon Assurance (K) Ltd v Ali Hamadi Mwagude & 4 Others
    [2017] eKLR

    Defendant's reliance on primary evidence rule

  • Re Estate of Charles Ndegwa Kiragu alias Ndegwa Kiragu (deceased)
  • Samuel Kiti Lewa v Housing Finance Co of Kenya Ltd & another
    [2015] eKLR

    Re-opening of a case and recall of a witness

  • Patel EA Cargo Handling Services Limited
    [1974] EA 75

    Discretion to re-open a case in the interest of justice

  • Andrew Mugandi Nuri & 2 others v China Dalian International Group
    [2020] eKLR

    Support for re-opening the plaintiffs' case

  • Raindrops Limited v Country Government of Kilifi
    [2020] eKLR

    Defendant's opposition to re-opening the case

  • Lwangu v Ndote (Environment & Land Case 79 of 2010) [2021] KEELC 2 (KLR)
    [2021] KEELC 2 (KLR)

    Best evidence rule; exceptions permitting secondary evidence under Sections 67 and 68

  • Kenneth Nyaga Mwige v Austin Kiguta & 2 others
    [2015] eKLR

    Stages of a document; marking for identification does not dispense with formal proof; admission is not proof

  • Titus Kirago & Another v Kioriah Njoka & Another, Nakuru HCCC 156 of 2003

    Prior ruling recording that the deceased entered into the sale agreement with the plaintiffs

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; applications under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 18 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 66, 68 and 146(4) 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, "Kiragu & another v Njoka (Sued as the Administrator of the Estate of Njoka wa Kioriah)", Case Analysis (2023). Environment & Land Case 568 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17827/eng@2023-06-08

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