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ELCOther· [2025] KEELC 6508 (KLR)

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)

Environment and Land Court
24 September 2025
2,604 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kakamega (A. Nyukuri, J) resolves objections raised at the pre-trial conference to the production of documents by the plaintiff, the 1st, 2nd, 4th, 5th and 6th interested parties, and the 2nd and 3rd defendants (Land Registrar and Attorney General). Counsel for the 1st defendant (Mr. Nyikuli) and the 3rd interested party (Mr. Getanda) objected to the production of documents by persons other than their makers, seeking that original documents be produced by their authors. The court applied section 35 of the Evidence Act, holding that documents should ordinarily be produced by their maker or a certified copy tendered, but that where the maker is dead, cannot be found, or attendance would cause unreasonable delay or expense, another person may produce the document. Since the Chief's and District Surveyor's letters (documents 3 and 4) were authored by Government officers, some now retired, the court directed that they be produced by their authors or, where retired, by the current office holders, witness summons having been granted. The court declined to revisit the admissibility of the plaintiff's documents decided on 9th March 2022, that question being res judicata under section 7 of the Civil Procedure Act. It further held the 6th interested party competent to produce copies of the agreements and letters, since he was a party to the agreements, the originals were held by the defendant, and the defendant could not be expected to certify a document against himself. The objections were dismissed and all other documents admitted for production at trial by the listed witnesses. No costs order was made.

Key legal issues

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01

Admissibility and production of documents under Section 35 of the Evidence Act

Holding

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

Reasoning

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.

p. 4
02

Res judicata on admissibility decided on 9th March 2022

Holding

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

Reasoning

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.

p. 5
03

Competence of the 6th interested party to produce copies of agreements and letters

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The objection against the plaintiff's and 1st, 2nd, 4th and 5th Interested Parties' documents is dismissed
  2. 2.The objection against the production of documents filed by the 6th interested party is dismissed
  3. 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. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.