[2008] KEHC 2266 (KLR)
The court found that the documents in question originated from Kencem, which no longer exists. The main objection was that the plaintiff was not the maker of the documents. However, the court applied the proviso to section 35 of the Evidence Act, which allows for the admission of documents where the maker cannot be...
Source-derived case information.
- Citation
- [2008] KEHC 2266 (KLR)
- Parties
- Plaintiff: Dominic Alois George Omenye t/a Omenye and Associates; Defendant: Kenya Commercial Bank Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 635 of 1996
- Procedural Posture
- Civil Suit / Ruling on Admissibility of Documentary Evidence
- Outcome
- Objection overruled; documents admitted as evidence.
- Legal Topics
- Admissibility of Evidence, Documentary Evidence, Hearsay Exceptions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Alois George Omenye t/a Omenye and Associates
Plaintiff
Kenya Commercial Bank Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Admissibility of Documentary Evidence
Legal Issues
- 1 Whether the plaintiff can produce documents as evidence when he is not the maker of the documents.
- 2 Whether the documents from Kencem, a non-existent entity, are admissible under the Evidence Act.
Ratio Decidendi
The court found that the documents in question originated from Kencem, which no longer exists. The main objection was that the plaintiff was not the maker of the documents. However, the court applied the proviso to section 35 of the Evidence Act, which allows for the admission of documents where the maker cannot be called to testify because they cannot be found. Since Kencem no longer exists, the court held that the documents could be admitted as evidence. The objection was overruled, and the documents were admitted as plaintiff's exhibit No. 23. Costs of the objection were awarded to the plaintiff.
Court Disposition
Objection overruled; documents admitted as evidence.
Orders
- P.M.F.I. 23 admitted in evidence as plaintiff’s exhibit No. 23.
- Costs of the objection to be met by the defendant.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Suit 635 of 1996
DOMINIC OMENYA t/a OMENYE AND ASSOCIATES ………PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LIMITED …….......…………DEFENDANT
R U L I N G
Dominic Alois George Omenye, the plaintiff herein sought to produce the statements sent to his firm, Omenye & Associates by Kencem as exhibit number 23. Accompanying the statements, are the invoice, a summary of computation of loss of Business and actual tonnage purchased. An objection against the production was raised by Mr. Omondi, learned advocate for the defendant on the ground that the plaintiff was not the maker of the documents. Mr. Ouma, learned advocate for the plaintiff beseeched this court to reject the objection and proceed to permit the document to be produced as an exhibit in evidence. Mr. Ouma pointed out that the documents were sent to his client by Kencem and that Kencem being the maker cannot be available to present the same because it no longer exists.
I have considered the submissions of learned advocates from both sides. It is not in dispute that the statements marked as P.M.F.I. No. 23 originated from Kencem. It is also not in dispute that Kencem no longer exists. The documents are original documents and the invoices and the summaries accompanying the same arose out of the statements. The main objection against the production of P.M.F.I. 23 is the fact that P.W.1 is not the maker. It has been stated that Kencem the maker is no longer in existence. The proviso to section 35 of the Evidence Act is clear on that aspect. The law states interalia that where the maker cannot be called to testify because he cannot be found the document can be produced and admitted. For the above reason I overrule the objection and admit P.M.F.I. 23 in evidence as plaintiff’s exhibit No. 23. Costs of the objection to be met by the defendant.
Dated and delivered at Mombasa this 5th day of June 2008.
J.K. SERGON
J U D G E
In open court in the presence of Mr. Wachira h/b Omondi for the Defendant
N/A for the plaintiff.