[2018] KEHC 1785 (KLR)
The court found that the documents in question were authored by persons other than the plaintiffs, and the plaintiffs had not provided evidence of any attempt to secure the attendance of the authors. The defendant's objection regarding the authenticity and veracity of the documents was deemed pertinent, especially...
Source-derived case information.
- Citation
- [2018] KEHC 1785 (KLR)
- Parties
- Plaintiff: Amerisource Limited; Plaintiff: Alex Mautia Morume; Defendant: Nation Media Group Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 253 of 2011
- Procedural Posture
- Civil Case / Ruling on Evidentiary Objection
- Outcome
- Objection upheld; plaintiffs directed to summon authors of documents for production as exhibits.
- Judges
- JK Sergon
- Legal Topics
- Admissibility of Evidence, Documentary Evidence, Authentication of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amerisource Limited
Plaintiff
Alex Mautia Morume
Plaintiff
Nation Media Group Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Evidentiary Objection
Legal Issues
- 1 Whether documents authored by third parties can be admitted as exhibits without calling their makers to testify.
- 2 Whether the plaintiffs have demonstrated sufficient effort or impossibility in securing the attendance of the authors of the documents.
Ratio Decidendi
The court found that the documents in question were authored by persons other than the plaintiffs, and the plaintiffs had not provided evidence of any attempt to secure the attendance of the authors. The defendant's objection regarding the authenticity and veracity of the documents was deemed pertinent, especially given the information that the company which authored the documents had been wound up before the contract took effect. The court held that, in the absence of evidence showing efforts to secure the authors' attendance or the impossibility of doing so, the documents could not be admitted as exhibits without the makers being summoned for cross-examination. The objection was upheld,...
Court Disposition
Objection upheld; plaintiffs directed to summon authors of documents for production as exhibits.
Orders
- The authors of documents identified as no. 6 and 9 in the plaintiff’s bundle shall be summoned to produce the letters as exhibits in evidence.
- Costs of the objection to abide the outcome of the suit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 253 OF 2011
AMERISOURCE LIMITED..........................................1STPLAINTIFF
ALEX MAUTIA MORUME..........................................2ND PLAINTIFF
-V E R S U S –
NATION MEDIA GROUP LTD ......................................DEFENDANT
RULING
1. On 20th September 2018, Amerisource Ltd and Alex Mautia Morume, the 1st and 2nd plaintiffs sought to produce as exhibits in evidence two documents namely:
i. The letter of termination of contract by Westphalia trading Ltd to Amerisource dated 13th July 2010 (i.e document no. 6 in the plaintiff’s bundle.)
ii. The letter from Westphalia trading Ltd to Amerisource Ltd dated 4. 10. 2010 (i.e document no. 9 of the plaintiff’s bundle.)
2. Miss Kemunto, learned advocate for the defendant raised an objection arguing that the makers of the aforesaid documents should be summoned to testify and produce the aforesaid letters. The learned advocate stated that she would like to have the makers of those documents cross-examined to establish the veracity of those letters.
3. Mr. Nyangau, learned advocate for the plaintiff urged this court to reject Miss Kemunto’s objection arguing that it will be extremely difficult to secure the attendance of the authors of the aforesaid documents since they reside in the United Kingdom (U.K) and in Ireland.
4. Miss Kemunto pointed out that she has information that the company where those documents emanated, got wound up in the year 2011 having stopped trading in 2010. She pointed out that the company wound up before the contract took effect.
5. Having considered the rival arguments made by learned counsels, it is clear that the documents sought to be introduced in evidence by the plaintiff as exhibits were authored by persons other than the plaintiffs. This fact is admitted by the plaintiff’s advocate.
6. The defendant’s advocate has raised doubts about the veracity of those letters.
7. In fact Miss Kemunto has alluded that the contract said to have been terminated as a result of the alleged defamatory publication may not have been terminated in the first place because the company which allegedly authored the letter was wound up. It would appear the plaintiff’s predicament is that it will be very expensive to secure the attendance of the director who authored the aforesaid letters.
8. It is clear in my mind that the issues raised by Miss Kemunto are so pertinent for purposes of establishing the authenticity of the subject documents.
9. Mr. Nyangau has just stated from the bar that it will be difficult to secure the attendance of the author of the documents. There is no evidence that the plaintiff has attempted to secure those witnesses. I uphold the objection raised by Miss Kemunto and direct the authors of the documents identified as no. 6 and 9 in the plaintiff’s bundle be summoned to have the letters produced as exhibits in evidence.
10. Costs of the objection to abide the outcome of this suit.
Dated, Signed and Delivered in open court this 9th day of November, 2018.
J. K. SERGON
JUDGE
In the presence of:
.................................................... for the Plaintiff
..................................................... for the Defendants