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ELCOtherNot stated in judgment· [2025] KEELC 1489 (KLR)
Scorpion Properties Ltd & another v Mody & 8 others; Mody (Plaintiff to the Counterclaim); Scorpion Properties Limited & 4 others (Defendant to the Counterclaim) (Environment and Land Case Civil Suit 2156 of 2007 & 196 of 2015 (Consolidated)) [2025] KEELC 1489 (KLR)
Environment and Land Court (Court stated as presiding over the main suit; station Nairobi)
24 March 2025
1,376 words in judgment
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·~6 min to read original · ~4 min briefThe bottom line
#A Kenyan court blocked a witness from producing government records he didn't create or obtain properly, forcing the rightful official custodians to produce them instead.
What this practically means
#Executive summary
#This is an interlocutory ruling by Christine Ochieng, Judge, delivered virtually at Nairobi on 24 March 2025 in a first-instance suit over Commercial Residential plot No. Nairobi/Block 91/56. The 4th Defendant objected to PW1 (Rahim Chatur) producing five documents: City Council of Nairobi minutes for December 2010 and February to May 2011; a 25 May 2000 letter from the Ministry of Lands and Settlement to Oyugi & Company Advocates; a 26 September 2017 letter from the National Land Commission to the Land Registrar; a Nairobi City County Assembly Planning and Housing Committee report; and a May 2019 Sedco Valuers valuation report. The Plaintiff conceded that the valuation report should be produced by its maker, so the sole issue was PW1's competence to produce the remaining documents. Applying section 35 of the Evidence Act (maker rule) and sections 79, 80 and 81 on public documents, and following the Supreme Court's decision in Kenya Railways Corporation v Okoiti, the court held that public documents must be produced by the custodian or as certified copies, or obtained under Article 35 of the Constitution. PW1 demonstrated no role in the meetings, no certification of the letters, and no explanation of acquisition. The court upheld the objections on all four impugned documents, marking them for identification or barring their production through PW1. No costs order was made.
Key legal issues
#01
Competence of a witness to produce public documents produced by others
Holding
PW1 was not competent to produce the minutes, the committee report and the two letters; the documents were marked for identification or the objection upheld
Reasoning
Section 35 of the Evidence Act requires documents to be produced by the maker, subject to statutory exceptions. Public documents must be produced as certified copies under section 80, or obtained under Article 35 of the Constitution. PW1 showed no role in the meetings generating the minutes and report, no certification of the letters, and no explanation of how he acquired them. An official custodian must be summoned to produce the county documents.
p. 4
Legal principles established
#- A document must be produced by its maker unless an exception under section 35(1)(b) of the Evidence Act applies
- Public documents may only be proved by certified copies obtained under sections 80 and 81 of the Evidence Act, or by information requested under Article 35 of the Constitution
- It is the maker of a document, or a recipient of it, who may produce it
Court orders
#- 1.Upheld the 4th Defendant's objection and marked the City Council of Nairobi minutes of proceedings (December 2010, February, March, April and May 2011) for identification only
- 2.Upheld the objection and marked the report of the Nairobi City County Assembly's Planning and Housing Committee on Commercial Residential plot No. Nairobi/Block 91/56 for identification only
- 3.Upheld the objection and directed that the letter dated 26th September 2017 from the National Land Commission to the Land Registrar be marked for identification
- 4.Upheld the objection in relation to the letter dated 25th May 2000 from the Ministry of Lands and Settlement addressed to Oyugi & Company Advocates
- Jurisdiction invoked
- First-instance civil suit; the judgment invokes the Evidence Act (Cap 80) and the Constitution (Articles 35 and 117) on production of documents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Scorpion Properties Ltd & another v Mody & 8 others; Mody (Plaintiff to the Counterclaim); Scorpion Properties Limited & 4 others (Defendant to the Counterclaim) (Environment and Land Case Civil Suit 2156 of 2007 & 196 of 2015 (Consolidated)) [2025] KEELC 1489 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1489/eng@2025-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.