Juma (Suing as the Administrator of the Estate of the Late Amos Juma Abelo alias Malowa Abura) v Abura & another (Environment and Land Case E004 of 2022) [2025] KEELC 5028 (KLR)
The bottom line
#A Kenyan court ruled a witness's statement cannot be used as evidence if the witness can't come to court to adopt and defend it.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff's application under Order 19(1) of the Civil Procedure Rules could sustain admission of a witness statement
Order 19 governs affidavit evidence, and the document sought to be admitted is a witness statement, not an affidavit; the Civil Procedure Act's substantive justice provisions do not donate power to cure this defect
The court held that Order 19 rule 1 refers to affidavit evidence, whereas what was sought to be admitted was a witness statement. Since a witness statement is not an affidavit, the defect cannot be cured by Sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act, which do not envisage a witness statement and do not donate such power.
Whether the witness statement met the threshold for admissibility under section 33 of the Evidence Act
It did not; the statement does not fall within any of the enumerated exceptions (a) to (h) in the second limb of section 33
Both parts of section 33 are conjoint and must be fulfilled. The court agreed with the respondent that the witness statement does not fit within the categories of statements relating to cause of death, business, interest of the maker, public right or custom, relationship, family affairs, custom-asserting transactions, or expressions of feeling by several persons.
Whether a witness statement is documentary evidence for purposes of section 35 of the Evidence Act
No; section 35 applies to a document itself produced in proof of a matter, not to a witness statement setting out testimony
Relying on Re Estate of Chabari Manyara (deceased) and Makanda v Osita, the court held that section 35 applies to documents themselves (such as a title deed, medical report or green card) produced in proof of facts, whereas a witness statement is a mere guide to what a witness would testify about and is not evidence until adopted.
Whether the right to a fair hearing under Article 50 would be infringed by admitting the statement without cross-examination of its maker
Yes; evidence must be tested through cross-examination and admitting untested evidence causes a miscarriage of justice
The court held that in an adversarial system, cross-examination is where a fair hearing lies. The plaintiff's argument that the contents could be tested through cross-examination of other witnesses and submissions could not be upheld, as the maker herself could not be challenged.
Legal principles established
#- A witness statement is not an affidavit and cannot be admitted as evidence in chief without being adopted by its maker
- A witness statement does not qualify as documentary evidence under section 35 of the Evidence Act
- Evidence must be tested through cross-examination; loss of the right to cross-examine occasions a miscarriage of justice
- The overriding objective provisions of the Civil Procedure Act cannot be used to circumvent the statutory framework for admission of statements of persons incapable of giving evidence
Court orders
#- 1.The application dated 5th June 2025 is dismissed
- 2.The costs of the application are awarded to the 2nd defendant
- Jurisdiction invoked
- Order 19(1) of the Civil Procedure Rules, Sections 1, 1A, 1B, 3, 3A of the Civil Procedure Act (Cap 21), Sections 33 & 35 of the Evidence Act (Cap 80) and all other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma (Suing as the Administrator of the Estate of the Late Amos Juma Abelo alias Malowa Abura) v Abura & another (Environment and Land Case E004 of 2022) [2025] KEELC 5028 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5028/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.