[2023] KEHC 19409 (KLR)

Atlantic Limited v Echken Agencies Limited (Civil Appeal E107 of 2021) [2023] KEHC 19409 (KLR) (26 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19409 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E107 of 2021

JN Kamau, J

June 26, 2023

Between

Atlantic Limited

Appellant

and

Echken Agencies Limited

Respondent

(Being an appeal from the Ruling and Order of Hon M. Shimenga (SRM) delivered at Kisumu in Chief Magistrate’s Court Case No 612 of 2016 on 24th August 2016)

Judgment

Introduction 1. In her decision of 24th August 2016, the Learned Trial Magistrate, Hon M. Shimenga, Senior Resident Magistrate, allowed the production of the Appellant’s Report as a stand alone document without the attachments thereto on grounds that the attached documents were not originals and that the witness was not the maker of the aforesaid documents.

2. Being aggrieved by the said decision, on 9th September 2021, the Appellant filed a Memorandum of Appeal dated 6th September 2021. It relied on nine (9) grounds of appeal.

3. Its Written Submissions were dated 3rd January 2023 and filed on 12th January 2023 while those of the Respondent were dated and filed on 20th January 2023. The Judgment herein is based on the said Written Submissions which the parties relied upon in their entirety.

Legal Analysis 4. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that the only issue that had been placed before it for determination was whether or not the documents that were attached to the Appellant’s Report were admissible in evidence in the circumstances of the case.

5. The Appellant submitted that the entire Final Report together with its enclosures was primary evidence and admissible secondary evidence at least. It was categorical that Fredrick Opondo (hereinafter referred to as “PW 2”) prepared the Final Report and the enclosures thereto were documentary evidence that supported his investigative findings and conclusion that the Respondent was culpable on a balance of probabilities of the loss of the twenty (20) rolls of galvanised steel wire which was subject of the suit. It added that in his capacity as the maker of the final Report, PW 2 was well suited to produce the entire Report and that the attachments together with the contents of the Final Report constituted coherent and cogent evidence in terms of his investigations, findings and conclusions.

6. It asserted that indeed PW 2 appeared in court and was extensively cross-examined on the contents as provided by law and he ought to have been allowed to produce the entire report. It placed reliance on the case of In re Estate of Charles Ndengwa Kiragu alias Ndegwa Kiragu-Deceased [2016] eKLR where it was held that nowadays we do not confine ourselves to the best evidence but admit all relevant evidence. It invited the court to consider the aforesaid approach in order to meet the ends of justice and to alleviate a potential miscarriage of justice by more stringent approaches that do not aid the ends of justice but introduce technicalities.

7. In that respect, it relied on Article 159(2)(d) of theConstitution of Kenya 2010 which enjoins courts to dispense justice with undue regard to procedural technicalities. It invoked Sections 67, 68(1)(b)(g) and 68 (2)(d) of the Evidence Act and argued that if at all the attachments to the Report were deemed as secondary evidence a position that was erroneous according to it, then to that extent PW 2 was the maker of the said Report and the attachments were admissible as secondary evidence since copies of the same were documents obtained from the parties and its agents and the contents of the said documents were within the knowledge of the parties.

8. It pointed out that the attachments were relevant and admissible purely for purposes of giving evidence as to the general result of the accounts by the person who had examined them, that is, PW 2 and who was skilled in the examination of such accounts or documents. It added that the general result of the Report was that the Respondent was to blame in negligence on a balance of probabilities as evidenced by the chain of movement of the consignment of one thousand one hundred and twenty (1120) rolls of galvanized steel wire from the Mombasa Port until the time of discovery that twenty (20) rolls were missing at the time of delivery at its premises in Kisumu.

9. It further invoked Section 69 of the Evidence Act and argued that the import of that provision was that the attachments were admissible secondary evidence with no requirement whatsoever to serve any Notice under the aforesaid Section. It added that PW 2 had led evidence to the extent that he personally conducted investigations by visiting the parties’ premises and made face-to-face interviews, collected documents in support thereof and collated the Report. It was therefore its contention that PW 2 therefore established that he had personal knowledge of the contents of his Final Report.

10. It pointed out that apart from attachments marked C, D, E & F respectively whose maker was from China -Hebei Cangzhou New Century Foreign Trade Ltd, the other attachments were documents within the possession of both parties and/or its agents. It was emphatic that it would be unreasonable to expect it to avail the maker of the attachments from China since the copies of the same were given to it in the process of importing the one thousand one hundred and twenty (1120) rolls of galvanized steel wire from China and being in custody of the same, it ought to be allowed to produce them to prove that indeed all the said rolls arrived intact at the Port of Mombasa.

11. It was its contention that the maker from China was exempted under Section 69 (vi) of the Evidence Act as the person in possession of the document was out of reach of or not subject to the process of the court and that the makers of the other attachments were also exempted under Section 69 (iii) and (iv) respectively of the Evidence Act since from the nature of the case, the Respondent ought to known that it would be required to produce it and also since the Respondent or his agent had the original in court.

12. It further submitted that a report could be produced as a stand-alone document without enclosures or attachments if it provided all the necessary information on its own but that in this case, the attachments were very key and central to the Report’s findings and conclusion particularly on the question of liability for the loss of the twenty (20) rolls of galvanized steel wire. It pointed out that for that reason it was logical that the attachments were inextricable from the Final Report. It argued that the Trial Court erred and produced a potential absurdity in evidence by purporting that the Final Report was only partially admissible as a stand- alone document and in doing so, it deprived itself of crucial supporting evidence contained in the attachments to the Report.

13. It further contended that PW 2 relied on and referenced the Import Documentation, Port Clearance Records, Packing List Documents, Weigh Bridge Documents & Invoices from the Respondent which were relevant to the Report as they showed the chain of movement of the consignment from the point they landed at Mombasa Port until delivery at its premises in Kisumu when the twenty (20) rolls were discovered to be missing. It added that the attachments in the Final Report were the basis of his conclusion that it was not clear at what point the twenty (20) rolls disappeared and that it was likely they disappeared while in possession of the Respondent by itself, its employee, that is, driver and/or its sub-contracted Agent-M/S Awanad Enterprises.

14. It was its case that the full Report therefore formed a continuous record of the question of movement of the consignment and the loss of twenty (20) rolls in question and the Report was therefore admissible in its entirety. It cited Section 35 of the Evidence Act and asserted that it was not in dispute that PW 2 was called as a witness during hearing and was extensively cross-examined by the Respondent on the contents of the said Report and that there was no justifiable basis why the Report could not be produced in its entirety. It added that PW 2 was also responsible for the accuracy of the said report.

15. It pointed out that the Trial Court failed to consider the exceptions to the Rule on production of documents under Section 35 of the Evidence Act as it was unreasonable to expect an officer/agent from China to be availed to produce the said document without causing unreasonable delay or expense. It added that the Learned Trial Magistrate ought to have considered the likely delay and colossal expense to avail such a witness and admit the said documents and Report in its entirety.

16. It further submitted that the Respondent did not raise any objection pursuant to Order 11 of the Civil Procedure Rules during pre-trial directions to require the makers of the attachments to the Report to be called to give evidence and produce the Report. It therefore argued that the objection to production of the same was an ambush in the sense that the question on which witness to be availed would have been dealt with at that stage. It added that having served the said Report and attachments upon the Respondent and also availed PW 2, the maker of the Report as a witness for cross-examination, it would be stretching the rules on production and admissibility to absurd and impracticable standards in taking the erroneous approach taken by the Learned Trial Magistrate.

17. It was categorical that the hearing on 5th August 2021 proceeded virtually via Microsoft Teams platform and documents produced consensually as per the Plaintiff’s List of Documents. It pointed out that the said documents had been filed and served between parties and no objection was raised during the virtual hearing except the objection on the production of the attachments to the Report and that no request was made for a physical hearing in open court for purposes of producing original documents as filed and served by it. It added therefore that to introduce such a requirement at a later stage had the unintended effect of locking out credible and admissible evidence to its detriment.

18. In that regard, it further cited Section 35(2)(b), Section 107 and 108 of the Evidence Act and contended that it sought to produce the Final Report in its entirety to prove its case on a balance of probabilities. It placed reliance on the case of Bonham Carter vs Hyde Park Hotel Ltd (1984) 64 T.R 177 where it was held that the plaintiffs must understand that if they brought actions for damages, it was for them to prove damage and that it was not enough to write down particulars and so to speak, throw them at the head of the court saying “this is what I have lost, I ask you to give me these damages”.

19. It argued that it would be a grave miscarriage of justice if the Ruling of the Trial Court was left to stand as it would heap an unnecessary difficulty for it to prove its case on a balance of probabilities. It added that in any case, having already cross-examined PW 2, nothing prevented the Respondent from leading its own evidence in support of its case, produce its evidence proving its case on a balance of probabilities and leave it to the Trial Court to determine the issues in the suit.

20. On its part, the Respondent invoked Section 35 of the Evidence Act Cap 80 (Laws of Kenya) and argued that the documents to be produced had to be the original and must be produced by the maker thereof. It added that it was trite law that he who alleges must prove. It pointed out that the Appellant had argued that the makers of the documents were in China and would therefore be too expensive and unreasonable to call them to give evidence but that in this technological era, virtual hearings were conducted every day and there was no need for a witness to traverse the globe in order to testify in court.

21. It asserted that there were exceptions which were set out in the proviso to Section 35(1)(b) and that it must be shown that the maker was dead or could not be found, was incapable of giving evidence, his attendance could not be procured without delay or expense which in the circumstances appeared to the court to be unreasonable. It was its contention that the Appellant failed to demonstrate that the maker(s) of the documents were unable to testify for any of the said reasons or even that he made any effort to have them attend court to produce the documents and/or had challenges in that regard.

22. It further invoked Section 67 of the Evidence Act and placed reliance on the case of Sofie Feis Caroline Lwangu vs Benson Wafula Ndote [2021] eKLR where it was held that Section 67 of the Evidence Act was couched in such a manner as to make it mandatory for documentary evidence to be produced in its primary form unless the secondary evidence thereof fell among exceptions provided for in the said Evidence Act. It added that admissibility hinged on production of the original document and argued that the Appellant sought to produce photocopies which were not even certified as true copies of the originals.

23. It further cited the case ofEstate of Charles Ndegwa Kiragu Alias Ndegwa Kiragu (Deceased) [2016] eKLR where it was held that secondary evidence of the contents of a document could not be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the exceptions provided under Section 68 of the Evidence Act. It was emphatic that no explanation was preferred by the Appellant as to why the primary evidence could not be obtained. It asserted that the Appellant’s witness, PW 2, was only limited to producing the Report which he prepared and not the documents attached to it. It urged the court to dismiss the Appellant’s appeal with costs.

24. Notably, the Appellant filed its suit on 17th November 2016. It proceeded for hearing for the first time on 27th May 2021 when Symon Kipkemboi Lariak (hereinafter referred to as “PW 1”) testified. It then came up for hearing of further Appellant’s case on 5th August 2021. On that date, the proceedings were virtual and the Appellant’s witness PW 2 was called to testify. The proceedings of that date gave rise to this appeal.

25. In the course of his testimony, PW 2 sought to produce his Final Report together with the attachments thereto, however, the Respondent raised an objection to the production of the attached documents to the aforesaid Final Report on account of the fact that the witness was not the maker. Upon hearing the arguments on the objection by both parties, the Learned Trial Magistrate upheld the objection.

26. A perusal of the aforesaid Final Report showed that the same was dated 20th June 2016. It was executed by PW 2 and another, one Boniface Nziga, Director, General Adjusters Kenya Limited. This court took note of the fact that the attached documents marked (A-F) sought to be produced by PW 2 were photocopies of the originals. Attachments marked A, B and G bore the Respondent’s Letter Head and were executed by persons other than PW 2. Attachments C, D, E and F emanated from Hebei Cangzhou New Century Foreign Trade Co Ltd, China.

27. Production of documentary evidence, if sought by parties, is a crucial aspect in any trial just like oral testimony. It is governed by the Evidence Act and the procedure thereof or which was to be followed by parties and supported by Order 3 Rule 2, Order 7 Rule 5 and Order 16 Rules 6 and 7 of the Civil Procedure Rules. These provisions relate to the filing of documents which should accompany the Plaint, Defence and Counterclaim (if any) respectively and persons either or not summoned by court to produce documents and requiring persons in court to produce there and then documents in their possession.

28. The Evidence Act provides that documentary evidence can be either primary or secondary. According to Section 65 (1) of the Evidence Act:-“Primary evidence means the document itself produced for the inspection of the court.”

29. Primary evidence is the best type of evidence. It is called the best evidence rule. Therefore, a party in any proceedings should endeavor, at all times, to rely on primary evidence. But in cases where it is not possible to avail primary evidence in court, for example, where the evidence is of immovable nature then the court is permitted to admit secondary evidence.

30. Going further, Section 67 of the Evidence Act is couched in such a manner as to make it mandatory for documentary evidence to be produced in its primary form unless the secondary evidence thereof fell among the exceptions provided in the Act. It states “Documents must be produced by primary evidence except in the cases hereinafter mentioned.” This forms the basis of the best evidence rule. Thus, by virtue of the provision, a party has no option but to either avail the document itself or bring himself within the exceptions given in the law.

31. The plain grammatical meaning of the word “must” is that it is “mandatory” to produce primary evidence except as provided. There is no room for manouvre. That mandatory requirement then attaches to placing oneself within the exceptions. It therefore follows that where a party fails to produce primary evidence, the document, however crucial it is to his case, any other form thereof should neither be accepted in evidence nor relied on by the court. In arriving at that conclusion, this court bore in mind the constant reminder that rules (of evidence and procedure) are not made in vain but are to be followed. Section 67 therefore safeguards against the sneaking in evidence that may be referred to as fraudulent.

32. Under Section 66 of the Evidence Act, secondary evidence includes certified copies produced as per the provisions of the Evidence Act. These include copies made originals by mechanical processes which in themselves ensure accuracy of the copy, copies compared with such copies, copies made from or compared with the original, counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who had himself seen it.

33. Section 68 of the Evidence Act provides that secondary evidence may be given of the existence, condition or contents of a document in situations where the original document is in possession of the adverse party or a person out of the reach of the court or any person legally bound to produce it but fails to produce, where the contents are admitted in writing by the adverse party, where the original is lost or destroyed or cannot be produced within reasonable time, the original is not easily movable, the original is a public document, the original is a certified copy and where the original consists of numerous accounts of other documents if the conditions set out herein have been met.

34. Section 69 of the Evidence Act provides instances in which the secondary evidence may be admitted as evidence in court. It provides as follows:“Secondary evidence of the contents of the documents referred to in Section 68(1)(a) of this Act shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such a notice to produce it as is required by law or such notice as the court considers reasonable in the circumstances of the case:Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases-i.When the document to be proved is in itself a notice;ii.When from the nature of a case, the adverse party must know that he will be required to produce it;iii.When it appears or is proved that the adverse party has obtained possession of the original by fraud or force;iv.When the adverse party or his agent has the original in court;v.When the adverse party or his agent has admitted the loss of the document;vi.When the person in possession of the document is out of reach of, or not subject to, the process of the court;vii.In any other case in which the court thinks fit to dispense with the requirement.”

35. Where the document is not the original, that is to say, it is secondary evidence, the party is required to show the copy to the other parties and the court first and then lay basis for the production of the copy and not the original. Once the court is satisfied that the party has laid a proper basis for producing secondary evidence of the document, the party can then produce the document short of which, it would not be allowed to rely on a document unless the court exercises its discretion under Section 69(iv) of the Evidence Act to dispense with the need for production of the document.

36. Ordinarily, the Appellant herein would have been required to have issued a notice to produce copies of the documents as they were secondary evidence and not primary evidence and to also have laid a proper basis for the production of copies of documents.

37. In the instant case, the documents which PW 2 sought to produce were photocopies whose originals thereof were with their makers and the Respondent. The witness who would have come from China -Hebei Cangzhou New Century Foreign Trade Ltd to adduce some documents as evidence was a person who was out of reach of, or not subject to, the process of the court as envisaged in Sections 68 (1)(a)(ii) and 69 (vi) of the Evidence Act.

38. Further, as provided in Section 35(1) (b) of the Evidence Act, his attendance from China could not have been procured without an amount of delay or expense for the matter to proceed physically in court which in the court’s view might not have been the most cost-effective way of conducting the trial bearing in mind this era of virtual hearings. Indeed, the Appellant did allude to the expense of bringing the witness to come to Kenya to testify during trial.

39. It was not clear to this court if the Respondent was in possession of the other documents PW 2 tried to present as evidence in court as contemplated in Section 69 (iv) of the Evidence Act. Suffice it to state that some of the documents PW 2 sought to tender in evidence in court were in possession of the Respondent herein. In this regard, this court took the view that the Appellant could therefore present secondary evidence.

40. Having said so, it was clear to this court that PW 2 was not adducing documents of other makers. He had merely attached copies of the same to his Report. In the view of this court, the striking out of the annextures from his Report by the Trial Court on the ground that the documents were not originals and that he was not the maker of the said documents was impractical as they were the basis of his conclusion. His Report had no legs to stand on and would not have assisted the Trial Court for purposes of determining the real question and/or dispute between the parties herein. This court took the firm view that it was not necessary for PW 2 to have laid any basis before relying on the copies that were attached to his Report.

41. On whether or not documents could be produced during virtual proceedings, sight should not be lost of the fact that we live in an era where technology has made it easy for hearings of matters to move from the conventional physical court sittings to virtual ones. The Covid-19 Pandemic revolutionised the manner in which, in Kenya and many other parts of the world, court sessions and filing of documents are done.

42. Where then courts use technology to conduct hearings in which there is need to rely on documentary evidence, the procedure of producing the document itself for inspection by court may not be the only way of doing things. Any documents transmitted during virtual platforms would be copies and not primary evidence.

43. Practise Directions now require that parties file witness statements that are cross-referenced to indexed and paginated bundle of documents that are adduced as evidence in court without having to tender in evidence the documents severally.

44. Parties are expected to have inspected the documents during the Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010 and proceeded on the basis of copies. An indication of which witnesses ought to be called as makers of documents must be stated at the Pre-trial conference to avoid ambush during trial and subsequent delays in trial due to probable appeals against decisions by trial courts expunging documents.

45. Any documents transmitted during virtual platforms would be copies and not primary evidence. It therefore follows that since the proceedings were virtual, any documents the witness from China would have adduced in evidence would have been copies and not originals unless of course the documents were being adduced during a physical hearing. There was no difference in the manner PW 2 would have adduced the same documents as evidence in court.

46. It was therefore this court’s view that the production of documents via the virtual platform in the circumstances of this case was proper despite it not having been primary evidence as it fell within the exceptions provided in the law.

47. In fact, the Respondent alluded to the witness from Chine adducing evidence virtually. Any documents tendered during evidence could not have been originals. There would only have been a mention of the same virtually. Notably, in view of the advancement of technology, Section 35, 68 and 69 of the Evidence Act are archaic and ought to be amended to be in tandem with the way of hearings are conducted today.

Disposition 48. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s appeal lodged on 9th September 2021 was merited and the same be and is hereby allowed. The effect of this decision is that the Ruling and Order of Hon. M. Shimenga (SRM) delivered on 24th August 2021 be and is hereby vacated, set aside and/or varied. The Respondent shall bear the Appellant’s costs of this Appeal.

49. It is hereby directed that the lower court file be returned to the Chief Magistrate’s Court Kisumu and that the same be placed before the Chief Magistrate on 10th July 2023 with a view to allocating this matter before another magistrate other than the magistrate who had the case for re-trial.

50. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 26TH DAY OF JUNE 2023J. KAMAUJUDGE