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ELCPartially AllowedELC Petition No. 40 of 2019· [2026] KEELC 4732 (KLR)

Ilays Trading & Transporters Company Limited v Cabinet Secretary to the National Treasury (As Trustee of Our Lady of Mercy Secondary School) & 8 others (Environment and Land Petition 40 of 2019) [2026] KEELC 4732 (KLR)

Environment and Land Court
23 July 2026
MCMbogo C.G.
1,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court can reject unstamped agreements and uncertified copies as evidence, but may still give you a chance to fix the paperwork.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court (Hon. Mbogo C.G., Judge) in ELC Petition No. 40 of 2019, delivered virtually on 23rd July 2026 during the examination in chief of the petitioner's witness, Abdullahi Abdi Hirabe (PW1). The 4th respondent objected to the production of agreements not compliant with the Stamp Duty Act and the Registration of Documents Act, while the 5th respondent objected that PW1 was not the maker of the documents and that they were produced as uncertified copies. The petitioner's counsel argued the objections were belated, not pleaded, and went to weight rather than admissibility. The court held that an unstamped instrument chargeable with stamp duty is inadmissible until the duty is paid, and that compliance with Section 19 of the Stamp Duty Act goes to admissibility. However, invoking Sections 19(3) and 20(1) of that Act, the court granted the petitioner leave to regularise the stamping of the agreements. On the second objection, the court found the production of uncertified secondary evidence had not been demonstrated, since Section 66 of the Evidence Act contemplates certified copies, and counsel had not explained the reliance on a maker (S.G. Mwangi) who would not testify. Both objections were found to have merit. The court directed the petitioner to comply with Section 20(1) of the Stamp Duty Act and the Registration of Documents Act, and to obtain certified copies under Section 66 of the Evidence Act. No costs order was made. This is not a final judgment; the petition itself remains for determination.

Key legal issues

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01

Admissibility of unstamped and unregistered agreements

Holding

The documents are inadmissible until stamp duty is paid, but the petitioner was granted leave to regularise them under Sections 19 and 20 of the Stamp Duty Act

Reasoning

Compliance with Section 19 of the Stamp Duty Act goes to admissibility; non-registration must be weighed for its legal effect where registration is required for enforcing rights. The court, however, is empowered to admit the instrument upon payment of duty and penalty, and so granted leave to comply rather than rejecting the documents outright.

p. 3
02

Production of uncertified secondary evidence and documents of a non-witness maker

Holding

The objections were upheld; the petitioner must obtain certified copies under Section 66 of the Evidence Act

Reasoning

The Evidence Act permits the contents of a document to be proved by primary or secondary evidence, with certified copies falling under Section 66. Counsel for the petitioner did not explain the production of uncertified copies or reliance on a maker (S.G. Mwangi) who would not testify, so the deficiency was not cured and compliance was ordered.

p. 4

Legal principles established

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  • An instrument chargeable with stamp duty which has not been stamped is inadmissible until the requisite stamp duty is paid
  • A court may grant leave to stamp an unstamped instrument under Sections 19(3) and 20(1) of the Stamp Duty Act

Court orders

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  1. 1.Leave granted to the petitioner to comply with Section 19(1) of the Stamp Duty Act as far as the agreements sought to be produced are concerned
  2. 2.Petitioner directed to comply with Section 20(1) of the Stamp Duty Act and the Registration of Documents Act
  3. 3.Petitioner directed to comply with Section 66 of the Evidence Act by obtaining certified copies of the documents intended to be produced
Jurisdiction invoked
Environment and Land Court jurisdiction over Petition No. 40 of 2019; admissibility governed by the Stamp Duty Act, Registration of Documents Act and Evidence Act

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, "Ilays Trading & Transporters Company Limited v Cabinet Secretary to the National Treasury (As Trustee of Our Lady of Mercy Secondary School) & 8 others (Environment and Land Petition 40 of 2019) [2026] KEELC 4732 (KLR)", Case Analysis (2026). ELC Petition No. 40 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4732/eng@2026-07-23

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