[2021] KEHC 4191 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

MATRIMONIAL CAUSE NUMBER 10 OF 2015

AWM...............................................PLAINTIFF

VERSUS

LMK............................................DEFENDANT

RULING

1. The plaintiff and the applicant are before me in a tussle of what the plaintiff claims and what the defendant denies, is matrimonial property acquired during their now dissolved marriage.

2. One of the properties is referred to as Plot […] Jua Kali Njoro ( Plot […]).

3. During his testimony the defendant testified that he had acquired this property by himself and had sold it. When he attempted to produce a Sale Agreement dated 1st January 2012 Mrs Mukira for the plaintiff raised objection to its production, she submitted that her instructions were that no such sale had ever occurred because at the time the two parties were married and there were legal obligations that would accompany such a sale for instance the consent of the spouse; that the witness was not the maker of the document and was therefore not competent to produce it.

4. Mr. Ikua for the defendant responded that the objection had no basis in law as the Evidence Act was clear on the production of documentary evidence. That the defendant was a signatory to the Sale Agreement, had testified that he was a party to the agreement and therefore had the right to produce the document. That the issues of spousal consent though legal technicalities could be put to the witness on cross examination and if he was unable to respond then the court would determine the value or weight to place on that evidence together with the agreement.

5. Mrs. Mukira ‘s rejoinder was that the Evidence Act is clear on the production of documents but in this case the defendant was only a party to the agreement but was not the drawer of the document. It was her position that it was necessary to call the maker of the document. That no explanation had been made as to why the drawer or maker of the document could not appear to produce the document.

6. The issue is whether the so called drawer of the agreement ought to be called as a witness in this case with respect to this document.

7. Upon perusal of the court record I have found two rulings on this issue. One by Emukule J (now retired) dated 10th October 2014 granting injunctions against the defendant restraining him from dealing with the matrimonial property in any manner detrimental to the outcome of the cause pending the hearing and determination of this suit. Plot 19 was one of them.

8. The second Ruling delivered on 29th September 2016 by A. K Ndung’u J found the defendant to be in contempt of the orders of 10th October 2014 for alienating the same plot and sentenced him to six (6) months imprisonment.

9. There is a Notice of Appeal in the file but no results of the appeal.

10. There is a very faint copy of a committal warrant to GK Prison Nakuru. It would appear that the defendant did serve the sentence.

11. The defendant was found guilty on the basis of his admission that he had defied the court order of 2014 but gave excuses that the land was sold long before Emukule J’s orders. It was found that he never raised that issue of the alleged sale when that application for injunction before Emukule Jwas heard inter partes.

12. He also claimed that he was never served with the restraining orders. The court did not believe him.

13. It is the defendant’s case that he sold the land. It is his duty to prove his case. It is his position that since his signature is on the document and he can identify the signature as his that is sufficient ground to warrant him to produce the document. He states that he can answer any questions in that regard.

14. I have carefully considered the rival arguments. Mrs Mukira’s argument about the maker is not applicable as it is with reference to statements as provided for by Section 33 of the Evidence Act. It states:-

“33. Statement by deceased person, etc., when Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases—”

15. What is in issue is whether the maker or drawer of the document ought to be called.

16. I have perused the sale agreement. It indicates it was drawn on 1st January 2021 by the firm of Munene & Associates Advocates. The buyer and sellers signatures were witnessed by this advocate and it bears the seal of that firm. The defendant cannot answer the questions on behalf of the Advocate who drew the document.

17. In view of the foregoing and the provisions of Section 76 of the Evidence Act it is in order for the drawer of the document to appear in court and ascertain that indeed the document was made in that firm and the seal is of that firm.

18. The objection is sustained.

19. The maker of the Sale agreement marked DMF1 be called to testify.

20. Parties to take fresh hearing date before the Deputy Registrar

21. Orders accordingly.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 2ND SEPTEMBER 2021.

MUMBUA T MATHEKA

JUDGE

CA Edna

Elizabeth Wangari Advocates for plaintiff

Ikua & Co Advocates for defendant