Nickson v Makhanu & 3 others (Environment & Land Case E001 of 2024) [2024] KEELC 5688 (KLR)
The bottom line
#Kenyan courts will strike out photos filed without the certificate required by Section 106B(4) of the Evidence Act, but won't expunge documents like scanned contracts without proof.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection is a proper preliminary objection
It is only to the extent of the photographs, whose status is evident on their face; the claim regarding the sale agreement and mutation form rests on unproven facts and is not a preliminary objection
The court restated the Mukisa Biscuits definition: a preliminary objection raises a pure point of law on assumed pleaded facts. Whether the sale agreement is a photograph is a factual question requiring evidence, so it cannot be raised preliminarily. The court examined the document itself, found it a scanned copy, and no pleading or affidavit described it as a photograph.
Admissibility of the four photographs under Section 106B of the Evidence Act
The photographs are electronic records inadmissible without a Section 106B(4) certificate; they are struck out
The deponent himself described the annextures as photos depicting damage. Under Section 106B(4), a certificate identifying the electronic record, describing its production and signed by a responsible person is required. Absent such a certificate, the court agreed with the defendants that the photographs are inadmissible and struck them out.
Legal principles established
#- An objection whose determination requires proof of facts cannot qualify as a preliminary objection
- Photographs generated from a phone are electronic records admissible only upon a certificate under Section 106B(4) of the Evidence Act
Court orders
#- 1.The four photographs annexed to the application dated 03/01/2024 are struck out for want of a certificate under Section 106B(4) of the Evidence Act
- 2.The Preliminary Objection otherwise fails; it succeeds only in part
- 3.Each party to bear his own costs
- 4.The application dated 03/01/2024 is fixed for hearing on 08/10/2024
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit; ruling on a preliminary objection raised in an interlocutory application dated 03/01/2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nickson v Makhanu & 3 others (Environment & Land Case E001 of 2024) [2024] KEELC 5688 (KLR)", Case Analysis (2024). Not stated in the ruling (Plaint dated 03/01/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5688/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.