[2019] KEHC 8866 (KLR)
The court found that the letter in question was addressed to the plaintiff, signed by the purported authors, and there was no allegation of forgery. It was not disputed that the authors had left the jurisdiction and that securing their attendance would be extremely difficult. Under the Evidence Act, the plaintiff,...
Source-derived case information.
- Citation
- [2019] KEHC 8866 (KLR)
- Parties
- Plaintiff: Ann Wanjiku Kamau; Defendant: Ogutu Joseph
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 567 of 2009
- Procedural Posture
- Civil Suit / Ruling on Admissibility of Documentary Evidence
- Outcome
- Objection overruled; document admitted as exhibit.
- Judges
- JK Sergon
- Legal Topics
- Admissibility of Evidence, Documentary Evidence, Absence of Witness, Cross Examination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Wanjiku Kamau
Plaintiff
Ogutu Joseph
Defendant
Procedural Posture
Civil Suit / Ruling on Admissibility of Documentary Evidence
Legal Issues
- 1 Whether the plaintiff can produce a letter of employment as evidence without calling its authors for cross-examination.
- 2 Whether the absence of the authors, who are outside the court's jurisdiction, precludes the document's admissibility.
Ratio Decidendi
The court found that the letter in question was addressed to the plaintiff, signed by the purported authors, and there was no allegation of forgery. It was not disputed that the authors had left the jurisdiction and that securing their attendance would be extremely difficult. Under the Evidence Act, the plaintiff, as the recipient, is entitled to produce the document in evidence. The court overruled the defendant's objection and allowed the letter to be admitted as an exhibit.
Court Disposition
Objection overruled; document admitted as exhibit.
Orders
- The plaintiff is permitted to produce the letter of employment as an exhibit marked PExh. 7.
- Costs of the objection to abide the outcome of the suit.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 567 OF 2009
ANN WANJIKU KAMAU...............................................PLAINTIFF
VERSUS
OGUTU JOSEPH........................................................ DEFENDANT
RULING
1) On 19th September 2018, Ann Wanjiku Kamau, the plaintiff herein, sought to produce in evidence as an exhibit her letter of employment dated 27. 9.2007. Mrs. Githae, the learned advocate for the defendant raised an objection arguing that she needed the author of the letter to attend court for purposes of cross-examination. This court proceeded to have the document marked for identification as PM.F.I. 7.
2) It is the submission of Miss Biage, learned advocate for the plaintiff that the authors of the letter namely: Tiikka Torppa and Alex Saelaert being expatriates have since then left Kenya, therefore, it would be extremely difficult and expensive to secure their attendance in court. The learned advocate further pointed out that the plaintiff was the recipient of the aforesaid letter and was therefore entitled to produce it under the provisions of the Evidence Act.
3) Mrs. Githae, is of the submission that it is important for the plaintiff to summon the authors of the aforesaid letter so that the defendant can cross-examine them to establish whether they employed the plaintiff as an expatriate nanny. The learned advocate further pointed out that the disputed letter does not show who authored the letter nor does it show that the plaintiff was hired as an expatriate nanny.
4) Having considered the rival submissions, it is apparent prima facie that the letter dated 27. 9.2007 was authored by Tiikka Torppa and Alex Saelaert. The same is addressed to the plaintiff and is signed. There is no allegation that the same is a forgery. It is also not in dispute that the authors of the aforesaid letter have left the jurisdiction of this court.
5) It is further not contested that it would be extremely difficult to secure the attendance in court of the aforesaid authors. Under the Evidence Act (Cap. 80 Laws of Kenya,) the plaintiff being the recipient of the letter is entitled to adduce the document in evidence. Consequently, I overrule the defendant’s objection and proceed to direct that the document should be produced as an exhibit in evidence marked PExh. 7.
6) Costs of the objection to abide the outcome of this suit.
Dated, signed and delivered at Nairobi this 14th day of March, 2019.
…………….....
J K SERGON
JUDGE
In The presence of
…………………………………… for the Plaintiff
…………………………………… for the Defendant