https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4107

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) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4107 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Case E022 of 2023 A Nyukuri, J July 1, 2026 Between Andreya Shimenga Shikulu (Suing as the Legal Representative of the Estate of Shikulu Atakha Chibenda - Deceased) Plaintiff and Caleb Matiani & 4 others & 4 others Defendant Ruling 1.Before court is a Notice of motion dated 26th January 2026 filed by the plaintiff seeking the following orders;a.That the witness statement of the late Andrew Ongayo Shikoto filed in court on 30th November 2023, be admitted as evidence on record.b.That the said witness statement be deemed as the evidence in chief of the deceased witness.c.That the court do dispense with cross- examination of the said witness on account of his death.d.That the said statement be admitted pursuant to Sections 33 and 35 of the Evidence Act (Cap 80 Laws of Kenya)e.That the costs of this application be in the cause. 2.The application was anchored on the supporting affidavit sworn by the plaintiff. The applicant’s case is that the Andrew Ongayo Shikoto, now deceased was the plaintiff’s witness who recorded a witness statement while alive, but passed away before this suit could be heard. That his evidence is relevant and material in this case and that the exclusion of the same in these proceedings will occasion grave injustice to the plaintiff. Further that no prejudice will be suffered by the defendants. 3.No response was filed to the application. The applicant filed submissions dated 4th June 2026, which the court has duly considered. Analysis and determination. 4.This court has carefully considered the application and the submissions filed by the applicant. The only issue that arise for the court’s determination is whether the plaintiff deserves the orders sought. 5.Section 35 of the Evidence Act allows a person other than the maker of a document to produce it where the witness is dead. The same provides as follows;“35.Admissibility of documentary evidence as to facts in issue.(1)In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—(a)if the maker of the statement either—(i)had personal knowledge of the matters dealt with by the statement; or(ii)where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and(b)if the maker of the statement is called as a witness in the proceedings:Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.(2)In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible or may, without any such order having been made, admit such a statement in evidence—(a)notwithstanding that the maker of the statement is available but is not called as a witness;(b)notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or the court may approve, as the case may be.(3)Nothing in this section shall render admissible any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.(4)For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.(5)For the purpose of deciding whether or not a statement is admissible by virtue of this section, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a medical practitioner.” 6.In the instant case, it has been demonstrated that Andrew Ongayo Shikoto having recorded a witness statement in favour of the plaintiff is now deceased. His statement contains averments in respect of the matters in dispute in these proceedings. I am therefore convinced that the witness statement of Andrew Ongayo Shikoto (deceased) may be produced as an exhibit at the trial, and not as evidence in chief as sought. 7.Therefore, the application dated 26th January 2026 is merited and the same is allowed. I hereby order that the witness statement of Andrew Ongayo Shikoto be produced at the trial by the plaintiff as an exhibit. The costs of the application shall abide the outcome of this matter. 8.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 1ST DAY OF JULY 2026A. NYUKURIJUDGEIn the presence of;Ms. Odeck for the plaintiffMr. Getanda for the 1st and 2nd defendantsMr. Nyikuli for the 3rd and 4th defendantsNo appearance for the 5th defendantCourt Assistant- Delphine