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ELCOther· [2024] KEELC 5579 (KLR)

Mwanzi & another (Both Trading as Kayole Hekima Academy Educational Centre) v Mwangi & 4 others (Environment & Land Case 126 of 2011) [2024] KEELC 5579 (KLR)

Environment and Land Court
18 July 2024
1,235 words in judgment
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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 interlocutory ruling by Mbugua J of the Environment and Land Court at Nairobi, delivered on 18 July 2024, resolves an objection by the plaintiff (supported by the 3rd defendant) to the production of two documents - a formalization card and a related receipt - which the 4th and 5th defendants sought to produce as exhibits through their witness, DW5. Counsel objected that the witness lacked the originals, was not the maker of the documents, and that the documents were contentious. The 1st and 2nd defendants did not object. The 4th and 5th defendants argued that the documents were filed on 1.7.2015, pre-trial concluded on 6.12.2016, and PW1 had testified as early as 18.12.2017, so any issues regarding the documents should have been raised at pre-trial; they also noted the objecting parties had themselves produced copies without calling their makers. The court reviewed the case-management framework under Order 11 of the Civil Procedure Rules, sections 1A, 1B, 3 and 3A of the Civil Procedure Act, and Articles 159(2)(b) and (d) of the Constitution, and applied Moschion v Mwangi, Virginia Kathambi Maingi v Nicholas Mwatika, and the Court of Appeal's decision in Evangeline Nyegera. Holding that relevancy is the test for admission of evidence, that secondary evidence through copies is admissible with cross-examination available on veracity and legitimacy, and that objections to production must be raised at pre-trial rather than during the hearing, the court dismissed the objection and allowed the documents to be produced.

Key legal issues

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01

Whether copies of documents may be produced through a witness who is not their maker

Holding

Yes; relevancy is the test for admission and secondary evidence through copies is admissible, with cross-examination available on veracity and legitimacy

Reasoning

Relying on the Court of Appeal in Evangeline Nyegera, the court held the test for admission of evidence is relevancy. The witness was a recipient, not the author, of the documents. The opposing party retains the opportunity to cross-examine on veracity and legitimacy, ensuring fair determination of the dispute.

p. 3
02

Whether a late objection to documents filed and disclosed since pre-trial can succeed

Holding

No; objections to production should be raised at pre-trial, not at an advanced stage of the hearing, in line with active case management and the overriding objective

Reasoning

The documents were filed on 1.7.2015 and pre-trial was concluded on 6.12.2016, with PW1 testifying in 2017. Service was never questioned until rejoinder. Active case management under Order 11 and sections 1A, 1B, 3 and 3A of the Civil Procedure Act requires parties to raise documentary issues at the appropriate time to avoid trial by ambush and stagnation.

Legal principles established

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  • Objections to production of documents on the ground that the maker was not called should be raised at the pre-trial stage and not during the main hearing
  • The test for admission of evidence is relevancy, and a party should not be barred from adducing secondary evidence through copies of original documents

Court orders

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  1. 1.The objection to the production of the formalization card and receipt is dismissed
  2. 2.The documents to be produced as exhibits through DW5, with liberty to cross-examine on their veracity and legitimacy

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(b) and (d)
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure Rules, 2010Order 11; Order 3

Cases cited (4)

  • Moschion v Mwangi
    (Environment & Land Case 350 of 2018) [2023] KEELC 17144 (KLR) (27 April 2023) (Ruling)
  • Virginia Kathambi Maingi v Nicholas Mwatika & 2 Others
    [2021] eKLR
  • Ntarangwi M'Ikiara v Jackson Munyua Mutuera
    [2018] eKLR
  • Evangeline Nyegera (suing as the legal representative of Felix M'Ikiugu alias M'Ikiugu Jeremiah M'Raibuni (deceased) vs Godwin Gachagua Githui
    Civil Appeal No. 28 of 2016
Jurisdiction invoked
Original civil jurisdiction; civil procedure rules on production of documents (Order 11 Civil Procedure Rules, 2010)

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, "Mwanzi & another (Both Trading as Kayole Hekima Academy Educational Centre) v Mwangi & 4 others (Environment & Land Case 126 of 2011) [2024] KEELC 5579 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5579/eng@2024-07-18

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