[2008] KEHC 2601 (KLR)
The court held that although Waita Musomba was not the author of the minutes, section 35(2) of the Evidence Act allows for exceptions to the requirement that the maker produce the document. Given the age of the dispute, the close family relationship of the parties, and the risk of undue delay if the secretary were...
Source-derived case information.
- Citation
- [2008] KEHC 2601 (KLR)
- Parties
- Respondent: Daniel Mutuse Waita; Applicant: Justus Kitili Musomba
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 286 of 2002
- Procedural Posture
- Probate and Administration Cause / Interlocutory Ruling on Admissibility of Documentary Evidence
- Outcome
- Objection overruled; document admitted.
- Judges
- I Lenaola
- Legal Topics
- Admissibility of Evidence, Documentary Evidence, Probate Disputes, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mutuse Waita
Respondent
Justus Kitili Musomba
Applicant
Procedural Posture
Probate and Administration Cause / Interlocutory Ruling on Admissibility of Documentary Evidence
Legal Issues
- 1 Whether a witness who is not the author of minutes of a clan meeting can produce the document as evidence in court.
- 2 Whether section 35 of the Evidence Act permits production of such a document by a non-author under the circumstances.
Ratio Decidendi
The court held that although Waita Musomba was not the author of the minutes, section 35(2) of the Evidence Act allows for exceptions to the requirement that the maker produce the document. Given the age of the dispute, the close family relationship of the parties, and the risk of undue delay if the secretary were to be called, the court found it just to permit Waita Musomba to produce the minutes. The Objector did not dispute the occurrence of the clan meeting or the distribution of land, only the technicality of who should produce the document. The court prioritized substantive justice and the need for expeditious resolution over strict adherence to technical rules of evidence in the...
Court Disposition
Objection overruled; document admitted.
Orders
- Objection by the Objector is overruled.
- Waita Musomba (PW5) is permitted to produce the document dated 7/12/1990 as evidence.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Prob & Admin Cause 286 of 2002
IN THE MATTER OF THE ESTATE OF TABITHA NDOTI MUSOMBA (DECEASED)
DANIEL MUTUSE WAITA………………..….PETITIONER/RESPONDENT
VERSUS
JUSTUS KITILI MUSOMBA………………………APPLICANT/OBJECTOR
RULING OF THE COURT
1. The hearing of this Cause is ongoing, with four witnesses having completed their testimonies in support of the Petitioner’s case. During the testimony of one Waita Musomba (PW5) he sought to produce minutes of a clan meeting which distributed the disputed property between himself and his step-mother, Ndoti Musomba. Waita Musomba said that he was one of the people who attended the meeting and that he, like all those others who attended the meeting, signed the minutes.
2. Mr. P.M. Mulwa for the Objector, objected to the production of the said document by Waita Musomba, arguing that Waita Musomba was not the author of the document. Citing the provisions of section 35 of the Evidence Act, Cap 80 Laws of Kenya, Mr. Mulwa urged the court to find that since the document sought to be produced are minutes of a clan meeting, it is only the person who wrote the minutes that should produce them. He was of the view that Waita Musomba can only identify the document.
3. On his part, Mr. O.N. Makau contended that since Waita Musomba had not only signed the document but had custody of it all along, then section 35 of the Evidence Act, gave him the power and authority to produce the document. In Mr. Makau’s view, the maker of a document referred to in section 35 of the Evidence Act is the one who signs the document. I am doubtful that Mr. Makau’s interpretation is correct. Section 35 of the Evidence Act governs the admissibly of documentary evidence as to facts in issue in civil proceedings upon the following conditions:-
(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 besupposed to have, personal knowledge of these matters; and
(b)if the maker of the statement is called as a witness in the proceedings:
Provided that the conditions 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”.
4. It is not in doubt that Waita Musomba is not the maker of the document that he seeks to produce. What then should the court do in the circumstances? I think that in the circumstances of this case, I would invoke the provisions of section 35(2) of the Evidence Act and allow Waita Musomba to produce the document that he seeks to produce. The reason for reaching this conclusion is that this is an old land dispute involving close family members and for the court to require that the secretary to the clan meeting that shared out the suit land between Waita Musomba and Ndoti Musomba be called to produce the document is likely to cause undue delay that could work against the interests of the family. As of now, it has not been made clear by either side whether the maker of the said minutes is dead or alive. In any event, the Objector is not disputing the fact that the clan elders met and distributed the land. The Objector’s only concern is that the person who wrote the document, namely the secretary to the clan meeting, should be the one to produce the document. The earlier this matter is resolved, the better for all parties concerned.
5. In the result, the objection by Mr. P.M. Mulwa for the Objector is overruled. Mr. Waita Musomba, PW5, may proceed to produce the document dated 7/12/1990.
It is so ordered.
Dated and delivered at Machakos this 15th day of April, 2008.
R.N. SITATI
JUDGE
Delivered by: Lenaola J
In the presence of::
Miss Katunga holding brief for Mr. Makau for Petitioner
Mr. Musyoka holding brief for Mr. Mulwa for Objector
I. LENAOLA
JUDGE
16. 4.07