Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2025] KEELC 38 (KLR)

Mayfair Establishment Limited v Athman & another (Environment & Land Case E041 of 2022) [2025] KEELC 38 (KLR)

Environment and Land Court
17 January 2025
2,225 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
This is an interlocutory ruling by the Environment and Land Court at Mombasa (Hon. L. L. Naikuni, J) arising during the pendency of a land suit between Mayfair Establishment Limited (Plaintiff/Applicant) and two Defendants. The Plaintiff sought to adopt as evidence a letter dated 13th April 2010 by Fourways Accommodation Bureau confirming the sale of Mombasa/Block X/9, 96 & 97 (Tudor) to the Plaintiff, the maker of the letter, Rukiyabai Dar, being deceased. The Defendants opposed, arguing the application was not anchored on a certificate of death and that the marker was deceased, and proposed the matter be held in abeyance. Plaintiff's counsel filed a supplementary list of documents including the death certificate. The court framed two issues: whether the letter should be adopted, and costs. Applying Sections 33 and 35 of the Evidence Act, Cap 80, which admit statements of deceased persons where the maker's attendance cannot be procured without unreasonable delay or expense, and relying on R v Ndolo, Arjun Panditrao Khotkar v Kailash Kushanrao, and Anvar PV v PK Basheer, the court held the letter admissible as an exception to the hearsay rule. It found the Defendants would suffer no prejudice as they had not yet given evidence and could interrogate the document at trial. The court allowed the adoption of the letter, directed a mention on 22nd January 2025 for further directions, and ordered each party to bear its own costs. The suit itself remains pending for full hearing.

Key legal issues

#
01

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

Holding

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.

Reasoning

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.

p. 4

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. 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. 2.That the matter to be mentioned on 22nd January, 2025 for further direction
  3. 3.That each party bears its own costs

Authorities

#

Legislation

  • Evidence Act, Cap 80Section 33
  • Evidence Act, Cap 80Section 35
  • Evidence Act, Cap 80Part IV
  • Evidence Act, Cap 80Section 136 (as discussed in Anvar PV v PK Basheer)
  • Constitution of Kenya, 2010not specified
  • Civil Procedure Act, Cap 21Section 3A

Cases cited (3)

  • Arjun Panditrao Khotkar v Kailash Kushanrao
    (2020) 3 SCC 216
  • Anvar PV v PK Basheer
    AIR 2015 SC 180: (2014)10 SCC 473
  • R v Ndolo
    (1926) 10 KLR 11
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.