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ELCPartially AllowedNot stated in the ruling (Plaint dated 03/01/2024)· [2024] KEELC 5688 (KLR)

Nickson v Makhanu & 3 others (Environment & Land Case E001 of 2024) [2024] KEELC 5688 (KLR)

Environment and Land Court
25 July 2024
1,886 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff sued the Defendants by a plaint dated 03/01/2024, accompanied by a notice of motion of the same date supported by his affidavit. The 1st, 3rd and 4th Defendants raised a preliminary objection seeking the expungement of four photographs, the sale agreement dated 23rd September 2023 and a mutation form of Trans-Nzoia/Botwo/496 for want of compliance with Section 106B of the Evidence Act, contending that the documents were screenshots or printouts of electronic records produced without the certificate required by Section 106B(4). The Plaintiff countered that the objection was not a pure point of law since it depended on disputed facts. The court, after restating the Mukisa Biscuits definition of a preliminary objection, examined the record. It found no mutation form attached, and found that the sale agreement was a scanned copy rather than a photograph; the claim that it was an electronic record required proof of fact and could not be raised as a preliminary objection. However, the four photographs were plainly photographs, described by the deponent himself as such, and absent a certificate under Section 106B(4) they were inadmissible and were struck out. The preliminary objection accordingly succeeded only in part, each party was to bear his own costs, and the application was fixed for hearing on 08/10/2024.

Key legal issues

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01

Whether the objection is a proper preliminary objection

Holding

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

Reasoning

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.

p. 4
02

Admissibility of the four photographs under Section 106B of the Evidence Act

Holding

The photographs are electronic records inadmissible without a Section 106B(4) certificate; they are struck out

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The Preliminary Objection otherwise fails; it succeeds only in part
  3. 3.Each party to bear his own costs
  4. 4.The application dated 03/01/2024 is fixed for hearing on 08/10/2024

Authorities

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Legislation

  • Evidence ActSection 106B (including subsections (1), (2), (3) and (4))

Cases cited (9)

  • Republic v Barisa Wayu Mataguda
    [2011] eKLR
  • Idris Abdi Abdullahi v Ahmed Bashane & 2 others
    [2018] eKLR
  • Bhavna Patel Mandaliya v Chetan Aroon Solanki
    [2021] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 Others, Application No. 50 of 2014
    [2015] eKLR
  • Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others
    [2004] eKLR
  • Susan Wairimu Ndiangui v Pauline W. Thuo & Another
    [2005] eKLR
  • George Oraro v Baker Eston Mbaja HCCC No. 85 of 1992
  • Mehuba Gelan Kellil & 2 others v Abdulkadir Abdilhim and others
    [2015] eKLR
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

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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, "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.