Mayfair Establishment Limited v Athman & another (Environment & Land Case E041 of 2022) [2025] KEELC 38 (KLR)
The bottom line
#Kenyan courts can admit letters written by deceased people as evidence in land disputes, as long as their death certificate is produced.
What this practically means
#Executive summary
#Key legal issues
#Whether the letter dated 13th April 2010 by Fourways Accommodation Bureau, whose maker (Rukiyabai Dar) is deceased, could be adopted as evidence under the hearsay exceptions
Yes. Under Sections 33 and 35 of the Evidence Act, statements of persons who are dead are admissible where they touch pecuniary or proprietary interests or where the maker's attendance cannot be procured without unreasonable delay or expense. The Plaintiff filed the certificate of death of Rukiyabai Dar, satisfying the conditions, and the Defendants would suffer no prejudice as they would have their day in court to challenge the document.
The court examined Section 33's hearsay exceptions and Section 35's provision on documentary evidence in civil proceedings, including the provisos dispensing with calling the maker where he is dead. It drew on textbook rationale (Wigmore/Sarkar) that necessity and circumstantial trustworthiness underpin the exceptions, and on authority that admissibility is tested before genuineness or reliability. The Plaintiff attached the death certificate of Rukiyabai Dar, and the Defendants had not yet given evidence and could interrogate the document at trial, so no prejudice arose. Section 3A of the Civil Procedure Act supported granting the necessary order.
Legal principles established
#- A statement or document made by a deceased person is admissible under Sections 33 and 35 of the Evidence Act where the maker is dead, cannot be found, or whose attendance cannot be procured without unreasonable delay or expense, though weight may be reduced
- 'Cannot be found' under Section 33 refers to the time the witness is sought to attend trial and requires a diligent search
Court orders
#- 1.That the Letter dated 13th April, 2010 by Fourways Accommodation Bureau written care of Rukiyabai Dar be and is hereby adopted as evidence in this suit
- 2.That the matter to be mentioned on 22nd January, 2025 for further direction
- 3.That each party bears its own costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; procedural application under Sections 33 and 35 of the Evidence Act, Cap 80 and Section 3A of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mayfair Establishment Limited v Athman & another (Environment & Land Case E041 of 2022) [2025] KEELC 38 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/38/eng@2025-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.