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ELCPartially AllowedNot stated in judgment· [2026] KEELC 4107 (KLR)

Shikulu (Suing as the Legal Representative of the Estate of Shikulu Atakha Chibenda - Deceased) v Matiani & 4 others (Environment and Land Case E022 of 2023) [2026] KEELC 4107 (KLR)

Not stated in the judgment (delivered at Kakamega in open court)
1 July 2026
ANA. Nyukuri
998 words in judgment
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The bottom line

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A Kenyan court allowed a deceased witness's statement to be used at trial, but only as an exhibit, not as main evidence.

What this practically means

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Executive summary

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By a notice of motion dated 26th January 2026, the plaintiff sought admission of the witness statement of Andrew Ongayo Shikoto, a witness who recorded a statement but died before the suit could be heard. The plaintiff asked that the statement be admitted as evidence on record, deemed the witness's evidence in chief, that cross-examination be dispensed with on account of death, and that the statement be admitted under Sections 33 and 35 of the Evidence Act (Cap 80). The application was supported by the plaintiff's affidavit; the defendants filed no response, and the court considered only the plaintiff's submissions dated 4th June 2026. Framing the sole issue as whether the plaintiff deserved the orders sought, the court analysed Section 35 of the Evidence Act, which renders admissible in civil proceedings a statement in a document tending to establish a fact where direct oral evidence would be admissible, provided the maker had personal knowledge, and where the requirement to call the maker is dispensed with on death. Finding that the deceased witness's statement contained averments on the matters in dispute, the court allowed the application but varied the relief: the statement may be produced at trial as an exhibit by the plaintiff, not as evidence in chief as sought. The costs of the application were ordered to abide the outcome of the suit. The application thus succeeded only in part, the court restricting the mode of admission of the deceased witness's statement.

Key legal issues

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01

Whether the witness statement of a deceased witness may be admitted under Section 35 of the Evidence Act

Holding

The statement is admissible and may be produced at trial as an exhibit by the plaintiff, but not deemed evidence in chief as sought

Reasoning

The court applied Section 35 of the Evidence Act, which admits statements of persons who are dead where direct oral evidence would be admissible, provided the maker had personal knowledge of the matters. The witness had recorded a statement in favour of the plaintiff containing averments on matters in dispute before his death. The court was satisfied the conditions were demonstrated, but modified the relief: the statement would be produced as an exhibit at trial rather than stand as evidence in chief.

p. 3

Legal principles established

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  • Under Section 35 of the Evidence Act, a statement of a deceased maker in a document may be admissible in civil proceedings where direct oral evidence would be admissible, provided the statutory conditions are met, including that the maker had personal knowledge of the matters stated.

Court orders

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  1. 1.The witness statement of Andrew Ongayo Shikito (deceased) be produced at the trial by the plaintiff as an exhibit (not as evidence in chief as sought)
  2. 2.The costs of the application shall abide the outcome of the matter
Jurisdiction invoked
Not stated in the judgment

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, "Shikulu (Suing as the Legal Representative of the Estate of Shikulu Atakha Chibenda - Deceased) v Matiani & 4 others (Environment and Land Case E022 of 2023) [2026] KEELC 4107 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4107/eng@2026-07-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.