Mutevesi (Suing as Legal Representative of Mutevesi Lubwa alias Mutevesi Lubwa - Deceased) v Imboko & 2 others; Lubwa & 5 others (Interested Parties) (Environment and Land Case 140 of 2016 & 304 of 2014 (Consolidated)) [2025] KEELC 6508 (KLR)
The bottom line
#A Kenyan land court ruled that documents can be presented in evidence by someone other than their author when that author is retired, unavailable, or producing them would cause unreasonable delay or expense.
What this practically means
#Executive summary
#Key legal issues
#Admissibility and production of documents under Section 35 of the Evidence Act
Documents must ordinarily be produced by their maker or, alternatively, a certified copy; where the maker is dead, cannot be found, or attendance would cause unreasonable delay or expense, another person may produce the document
The court set out section 35 of the Evidence Act, which governs admissibility of documentary evidence in civil proceedings, including the proviso excusing production by the maker where attendance cannot be procured without unreasonable delay or expense, and subsection (2) permitting certified copies where originals are unavailable. Applying this, retired Government officers' letters may be produced by current office holders.
Res judicata on admissibility decided on 9th March 2022
The court's earlier ruling on admissibility of the plaintiff's documents had not been set aside, reviewed or appealed, so the court cannot revisit it
On 9th March 2022 PW1 was allowed to produce documents 1, 2, 5, 6 and 7, while documents 3 and 4 (letters from the Chief and District Surveyor) were reserved for production by the Government offices. On 24th March 2025 parties agreed to proceed from where the matter had reached. The court held the admissibility question was resolved with finality and is now res judicata.
Competence of the 6th interested party to produce copies of agreements and letters
Being a party to the agreements, he is competent to produce them; where originals are with the defendant, the 6th interested party may produce copies as the defendant cannot be expected to certify a document against himself
The court noted the hand-written agreements can have only one original, which the 6th interested party swore was held by the seller/defendant; no contrary evidence or denial was presented. The earlier ruling of 17th December 2024 dismissing an application to compel the 6th interested party to submit originals to the DCI had not been set aside or reviewed, so the court found the assertion credible and dismissed the objection.
Legal principles established
#- Where a document's maker is dead, cannot be found, or attending would cause unreasonable delay or expense, the document may be produced by a person who did not make it; original documents or certified copies should be produced
- A party to an agreement is a competent witness to produce it
- A question of admissibility already decided with finality is res judicata under Section 7 of the Civil Procedure Act and will not be revisited
Court orders
#- 1.The objection against the plaintiff's and 1st, 2nd, 4th and 5th Interested Parties' documents is dismissed
- 2.The objection against the production of documents filed by the 6th interested party is dismissed
- 3.All documents filed are admitted and shall be produced at the trial by the listed witnesses respectively, save for documents Numbers 3 and 4 (letters from the Chief and the Surveyor Kakamega)
- 4.Documents 3 and 4, having been authored by Government officers in their official capacity, will be produced by the authors thereof and, where the authors are no longer in office, by the current respective office holders
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (pre-trial directions on production of documents in an ELC suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutevesi (Suing as Legal Representative of Mutevesi Lubwa alias Mutevesi Lubwa - Deceased) v Imboko & 2 others; Lubwa & 5 others (Interested Parties) (Environment and Land Case 140 of 2016 & 304 of 2014 (Consolidated)) [2025] KEELC 6508 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6508/eng@2025-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.