Jax Kenya Limited v Old Mutual Life Assurance Company

5. The distinction between admission of a document and proof of its contents is also well‑captured in Kenneth Nyaga Mwige v Austin Kiguta & 2 others, where the Court of Appeal reminded that production does not ipso facto prove the truth of the contents; weight remains a separate inquiry. 6. As to who may produce company records, the law and practice allow a competent corporate officer or custodian to produce such records, subject to laying an adequate foundation as to authenticity, custody, and the mode of keeping. Personal participation in the underlying transactions is not a prerequisite to admissibility; it goes to weight. (See also Companies Act, No. 17 of 2015, ss.37–41 on corporate authentication and authority.) 7. Order 11 of the Civil Procedure Rules, 2010 (as amended in 2020) vests the court with robust case management powers, and pre‑trial is the forum to take and resolve document objections. While late objections are not barred, the court will balance fairness, expedition, and prejudice in deciding whether to exclude evidence for lateness where it could and ought to have been raised earlier. 8. Regarding the substitution of the original witness because of death or unavailability, courts have permitted the substitution of a witness with another competent officer, controlling any resultant prejudice by appropriate directions. In Ogutu & another v Kenya Power and Lighting Company & 2 others [2024] KEHC 2550 (KLR), the Court stated that: “ If there is correspondence, reports or documented work carried out by any of the employees; such a report, correspondence or documents when done in the ordinary course of business by such an official can be produced even without calling the maker if it can be shown that the witness is dead, cannot be found or his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears unreasonable. This is permissible under both Section 35 and 38 of the Evidence Act….” 9. The Court continued that:“ In my view, the record of work of such an employee, any report made by him or correspondence can be produced by any other official witness duly authorized by the Company. What is not allowed is any attempt to produce the personal statement of a witness made or recorded for specific use in a pending suit or anticipated suit. Section 35 (3) of the Evidence Act provides thus: “…Nothing in this section shall render admissible any statement made by a person interested at the time when proceedings were pending or anticipated involving a dispute as to any fact in issue which the statement might tend to establish…” Consequently, if the applicant is seeking to produce the record of work of the previous witness or reports made by such a witness as opposed to his personal recorded statement, I see no reason why this application should not be allowed. Costs shall be in the cause.” 10. Applying these principles, the Court is satisfied that DW1, as a Legal Counsel employed by the Defendant, is a competent witness to testify on behalf of the company and to produce corporate records, subject to laying a proper evidential foundation on: his designation and responsibilities; the Defendant’s record‑keeping system and the manner in which the impugned records are created, maintained and retrieved; and how the particular bundle came into his custody and control. 11. As to the defence bundle, the Plaintiff’s concerns, particularly in relation to third‑party correspondence from 1995 (pp. 739–775), touch on hearsay and weight. The Court will admit the bundle in principle through DW1, subject to DW1 laying the foundation stated and subject to specific objections taken at the item level during production. For items that are third‑party correspondence, the Defendant shall, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4206/eng@2026-02-19 2

page 2 of 3

through DW1, establish the s.35 pathway, failing which such items may be marked for identification and their admission deferred or subjected to limited admissibility, with weight to be determined at final evaluation. 12. The complaint regarding the date of DW1’s witness statement (20 May 2024) is adequately addressed by the court’s case management discretion. The Court notes the explanation that the previously scheduled witness is deceased, necessitating substitution. In the premises, the Court will permit DW1’s testimony to proceed, and to obviate any prejudice, the Plaintiff shall have liberty to: a. conduct full cross‑examination on foundation, authenticity and hearsay; and b. if necessary, file a short supplemental statement limited to addressing any new matters of fact introduced by DW1’s foundation testimony, within 7 days of the conclusion of DW1’s evidence‑in‑chief, whereupon DW1 may be recalled briefly if strictly necessary. Disposition: 13. 14. The upshot of the foregoing is that: i. The objection to DW1’s competence to testify and to produce the Defendant’s documents is overruled. ii. DW1 shall first lay a foundation on his role, custody and the Defendant’s record‑keeping, after which the documents may be produced, subject to specific itemized objections. iii. The bundle is admitted in principle, with weight reserved to the end of trial; items lacking a proper s.35 foundation may be marked for identification or excluded as appropriate. iv. The Plaintiff is granted the liberties set out above. v. Costs of and occasioned by the objection shall be in the cause. Orders accordingly. SIGNED, DATED, AND DELIVERED IN VIRTUAL COURT THIS 19TH FEBRUARY 2026 ADO MOSES JUDGE In the presence of: C/A – Moses Ms. Kubai h/b for Oyatta……………..for the Plaintiff Rach & Waweru Gatunge…………….for the Defendant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4206/eng@2026-02-19 3

page 3 of 3