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ELCOtherNot stated in judgment· [2024] KEELC 7352 (KLR)

Mutwol v Mutwol & 4 others (Environment & Land Case 37 of 2020) [2024] KEELC 7352 (KLR)

Environment and Land Court
6 November 2024
FNFred Nyagaka
7,331 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court dismissed a late objection to documents, warning that raising document objections for the first time during a witness's testimony amounts to unfair trial by ambush.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Nyagaka J, delivered 6 November 2024) determines an oral objection raised by the Plaintiff's counsel on 30/10/2024 to the admissibility and production of four of eleven documents listed in the 1st Defendant's List of Documents dated 12/09/2024, during the hearing of the 1st Defendant's defence case in a land suit. The objected documents were two Land Control Board consents and two land sale agreements drawn by advocates. The Plaintiff contended the documents had to be produced by their makers, who were alive and available. The 1st, 2nd, 3rd and 5th Defendants opposed the objection. The court framed two issues: whether the objection was merited and who should bear its costs. Analyzing the law of authentication, relevance, admissibility and proof, the court held that the witness who gave instructions for and executed the two agreements was their maker, and that under Section 35(1) of the Evidence Act the agreements were admissible if originals. The LCB consents, being public documents, were admissible as originals or certified copies, their connection to the witness establishing authenticity. Critically, the court held that the Plaintiff, who never gave advance notice of her objection despite Order 11 compliance directions and Rule 28(g) of the Mutunga Rules, was attempting trial by ambush. The objection was dismissed, costs were awarded to the opposing parties against the Plaintiff (excluding the absent 4th Defendant), and the suit was directed to proceed from where it reached.

Key legal issues

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01

Whether the two land sale agreements (documents No. 4 and 10) could be produced by the 1st Defendant when they were drawn by advocates

Holding

They were admissible because the 1st Defendant was a party to and executed both agreements, making her their maker; if they are originals, Section 35(1) of the Evidence Act admits them

Reasoning

The court distinguished the person who draws a document from its maker, holding that one who gives instructions for and executes a document is its maker. The witness executed one agreement as purchaser and the other as vendor, giving her a direct connection to both. The authenticity challenge went to weight, not admissibility.

p. 11
02

Whether the Land Control Board consents (documents No. 3 and 6) could be produced by the witness who was not their maker

Holding

They were admissible as originals or certified copies of public documents, and the witness had a direct connection to them through her applications to the Board; the maker need not be called where the statutory conditions are met

Reasoning

The court applied the three-step test of relevance, admissibility and proof. The consents were relevant to the fact that the witness attended the LCB and was issued consents to transfer the suit land. Being public documents, primary evidence is the document itself or certified copies under Section 81. Admissibility, proof and weight are distinct concepts.

p. 11
03

Whether a party may raise an objection to production of documents for the first time when the adverse party takes the witness stand

Holding

No. Objections to documents must be raised in advance as required by Rule 28(g) of the Mutunga Rules and the Order 11 regime; a belated objection is trial by ambush and should not be countenanced

Reasoning

The purpose of filing Lists of Documents is to give the adverse party advance notice of the case and an opportunity to investigate authenticity and raise issues early. The Plaintiff never notified the 1st Defendant of her intention to object despite multiple compliance directions, and raised the objection only when the witness took the stand, in circumstances likely to cause undue delay.

p. 13

Legal principles established

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  • A person who gives instructions for a document and executes it is a maker of that document even if it was drawn by an advocate; the test is whether the alleged maker can legally be held responsible for the document's existence and contents
  • Documentary evidence must pass through relevance, admissibility and proof of contents; admissibility, proof and weight are distinct concepts
  • A party must raise objections to the production of documents in advance, not when the adverse party takes the witness stand; objections raised without notice amount to trial by ambush and will not be entertained
  • Under Section 35(1) of the Evidence Act, a document is admissible in civil proceedings if it is the original, the maker had personal knowledge of the matters, and the maker is called as a witness, subject to statutory exceptions

Court orders

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  1. 1.The Plaintiff's objection to the production of the four documents listed as No. 3, 4, 6 and 10 in the 1st Defendant's List of Documents dated 12/09/2024 is dismissed in so far as the documents are originals (No. 4 and 10) and either originals or certified copies (No. 3 and 6)
  2. 2.The costs of the objection, for the parties who opposed it (to the exclusion of the absent 4th Defendant), shall be borne by the Plaintiff
  3. 3.The suit to proceed from where it reached

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(d)
  • Evidence ActSection 33
  • Evidence ActSection 35
  • Evidence ActSection 64
  • Evidence ActSections 65 and 65(1)
  • Evidence ActSection 66
  • Evidence ActSection 67
  • Evidence ActSections 68 and 69 (including section 69(iv))
  • Evidence ActSection 79 (and 79(1)(8)(ii))
  • Evidence ActSections 80 to 82 (including Section 81)
  • Civil Procedure Rules, 2010Order 3 Rule 5; Order 7 Rule 5; Order 11 (Rules 2 and 3)
  • Civil Procedure ActSection 1A
  • Environment and Land Court ActSection 3
  • Practice Directions on Proceedings in the Environment and Land Courts (Mutunga Rules), 2013Rule 28 (including 28(g))
  • Evidence Act (India)Section 136

Cases cited (6)

  • Parkar & Another v NQ & 2 Others (Civil Appeal 139 of 2020)
    [2023] KECA 908 (KLR) (24 July 2023)
  • Arjun Panditrao Khotkar v Kailash Kushanrao
    (2020) 3 SCC 216
  • Lwangu v Ndote (Environment & Land Case 79 of 2010)
    [2021] KEELC 2 (KLR) (10th November 2021)
  • Mansukhalal Jesang Maru v Frank Wafula
    [2021] EKLR
  • Kenneth Nyaga Mwige v Austin Kiguta & 2 others
    [2015] eKLR
  • DPP v Kilbourne
    [1973] AC 729 at 756
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (Sections 1A and 3 on overriding objective cited)

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, "Mutwol v Mutwol & 4 others (Environment & Land Case 37 of 2020) [2024] KEELC 7352 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7352/eng@2024-11-06

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