[2024] KEHC 1305 (KLR)
The court held that while the plaintiff could produce documents to demonstrate his involvement as legal counsel for the defendants, admissibility depended on the nature and source of each document. Documents relating to the criminal matter in which the plaintiff represented the defendants as complainants were...
Source-derived case information.
- Citation
- [2024] KEHC 1305 (KLR)
- Parties
- Plaintiff: Gatheru Gathemia T/A Gatheru Gathemia & Co Advocates; Defendant: Jane Gathoni Munene; Defendant: Joan Mugure Munene
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 133 of 2015
- Procedural Posture
- Civil Suit / Ruling on Admissibility of Documents at Trial
- Outcome
- Partial admission of documents; remainder rejected.
- Judges
- A Mabeya
- Legal Topics
- Admissibility of Evidence, Production of Documents, Legal Services Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gatheru Gathemia T/A Gatheru Gathemia & Co Advocates
Plaintiff
Jane Gathoni Munene
Defendant
Joan Mugure Munene
Defendant
Procedural Posture
Civil Suit / Ruling on Admissibility of Documents at Trial
Legal Issues
- 1 Whether the plaintiff is competent to produce documents not authored or received by him as evidence in court.
- 2 Whether uncertified court proceedings and third-party witness statements are admissible as evidence.
- 3 Whether documents produced solely to show provision of legal services, rather than for the truth of their contents, are admissible.
Ratio Decidendi
The court held that while the plaintiff could produce documents to demonstrate his involvement as legal counsel for the defendants, admissibility depended on the nature and source of each document. Documents relating to the criminal matter in which the plaintiff represented the defendants as complainants were admitted, as their relevance and connection to the plaintiff's services were established. However, documents such as uncertified court proceedings, third-party witness statements, and forensic reports, for which the plaintiff was neither the maker nor recipient, were rejected due to lack of proper authentication and the inability to verify their contents. The court emphasized that...
Court Disposition
Partial admission of documents; remainder rejected.
Orders
- Documents relating to the criminal matter against the defendants' brother, in which the plaintiff represented the defendants, are admitted as evidence.
- Uncertified court proceedings, third-party witness statements, and forensic examination reports are rejected as inadmissible.
Full Case Text
Judgment text and source record
30 paragraphs
Gathemia t/a Gatheru Gathemia & Co Advocates v Munene & another (Civil Suit 133 of 2015) [2024] KEHC 1305 (KLR) (Commercial and Tax) (16 February 2024) (Ruling)
Neutral citation: [2024] KEHC 1305 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Commercial and Tax
Civil Suit 133 of 2015
A Mabeya, J
February 16, 2024
Between
Gatheru Gathemia T/A Gatheru Gathemia & Co Advocates
Plaintiff
and
Jane Gathoni Munene
1st Defendant
Joan Mugure Munene
2nd Defendant
Ruling
1. vide a ruling dated 15/7/2022, the court granted leave to the plaintiff to file and serve further documents and to recall his first witness to produce the same. On 30/5/2023, PW1 was recalled to produce the documents dated 3/12/2021 that had been admitted in July 2022.
2. Counsel for the defendant opposed the production of some of the documents at pages 1-16 and 29-50 on the grounds that, they constituted police documents which PW1 was not competent to produce as he was not the maker thereof.
3. The defendant’s Counsel further opposed the documents appearing at pages 70-89 of the bundle of those documents on the grounds that, they were proceedings from the lower court and were not certified. The document at page 237 was objected to on the ground that it was communication between an advocate and the DPP therefore the witness was incompetent to produce the same.
4. Those at pages 242 and 254 were objected to on the ground that they were witness statements and PW1 could not produce them. Lastly, the document at page 264 was opposed on the basis that it is a forensic examination report and the plaintiff was not the author thereof nor the recipient and therefore could not produce the same.
5. In rebuttal, the plaintiff’s Counsel argued that the documents questioned were produced to show that the plaintiff provided legal services to the defendants and not for the purpose of accuracy or facts contained thereon.
6. I have analysed the bundle of documents dated 3/11/2021 and considered the contesting positions of the parties.
7. The defendants’ Counsel primarily opposes the production of documents on the grounds that PW1 was not the maker nor recipient the documents in question and cannot therefore produce the same in Court.
8. The dispute between the parties is whether, the plaintiff as a Law firm provided legal services in various matters to the defendants. The purpose of the documents is to prove the plaintiff’s involvement in those matters as legal counsel for the defendants. Having looked at the documents on pages 1-16, I note that they are documents relating to a criminal matter against the defendants’ brother on a fraud charge. I note further that it was the plaintiff that represented the defendants as the complainants. I find no reason to deny the admissibility of these documents in this trial.
9. Pages 242-268 are witness statements and a forensic examination report. I note that the plaintiff’s position was that the documents were only being produced to show his involvement in preparation of the matters. However, the court cannot just accept them without ascertaining the veracity of the contents thereof. He was not the maker and they are therefore rejected.
10. From page 70-89 are proceedings from the lower court in the Criminal case no. 1708/12: R V. George Gitau Munene and another. The general rule is that a certified record of court proceedings is to be admitted as prima facie evidence in a proceeding. The record being uncertified, it cannot be admitted. The same is rejected.
11. Accordingly, save for those admitted, the rest of the documents are rejected.
It is so ordered.
DATED AND DELIVERED THIS 16TH DAY OF FEBRUARY, 2024. A. MABEYA, FCI ArbJUDGE