[2017] KEELC 100 (KLR)
The court found that the circumstances justified the admission of copies of the Plaintiffs' documents without calling the makers, as procuring the makers would result in undue delay and expense. Section 35(2) of the Evidence Act expressly provides for such exceptions in civil proceedings. The court emphasized that...
Source-derived case information.
- Citation
- [2017] KEELC 100 (KLR)
- Parties
- Plaintiff: Harish Ramji Manji; Plaintiff: Ashvin Ramji Manji; Defendant: Sedona Limited; Defendant: Diamond Trust Bank Limited; Defendant: Chief Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 279 of 2014
- Procedural Posture
- Ruling on Evidence Objection / Interlocutory
- Outcome
- Objection overruled. Plaintiffs allowed to produce documents No. 1-4 and 6-29 without calling the makers.
- Judges
- LC Komingoi
- Legal Topics
- Admissibility of Documents, Secondary Evidence, Production of Documents, Land Sale Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harish Ramji Manji
Plaintiff
Ashvin Ramji Manji
Plaintiff
Sedona Limited
Defendant
Diamond Trust Bank Limited
Defendant
Chief Land Registrar
Defendant
Procedural Posture
Ruling on Evidence Objection / Interlocutory
Legal Issues
- 1 Whether copies of documents listed by the Plaintiffs can be admitted into evidence without calling the makers as witnesses.
- 2 Whether the objection by the 1st and 2nd Defendants to the production of such documents is merited.
Ratio Decidendi
The court found that the circumstances justified the admission of copies of the Plaintiffs' documents without calling the makers, as procuring the makers would result in undue delay and expense. Section 35(2) of the Evidence Act expressly provides for such exceptions in civil proceedings. The court emphasized that no prejudice would be occasioned to the Defendants, as they would have the opportunity to cross-examine the witnesses. The objection by the 1st and 2nd Defendants was therefore without merit and was overruled, allowing the Plaintiffs to produce documents No. 1-4 and 6-29 as evidence without calling the makers.
Court Disposition
Objection overruled. Plaintiffs allowed to produce documents No. 1-4 and 6-29 without calling the makers.
Orders
- Plaintiffs' documents No. 1-4 and 6-29 are admitted into evidence without calling the makers.
- Objection by the 1st and 2nd Defendants is overruled.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRIONEMNT & LAND COURT
AT MOMBASA
ELC CASE NO. 279 OF 2014
HARISH RAMJI MANJI........................................................1ST PLAINTIFF
ASHVIN RAMJI MANJI........................................................2ND PLAINTIFF
-VERSUS-
SEDONA LIMITED..............................................................1ST DEFENDANT
DIAMOND TRUST BANK LIMITED ..............................2ND DEFENDANT
CHIEF LAND REGISTRAR...............................................3RD DEFENDANT
RULING
1. Mr. Taib for the 1st and 2nd Defendants has raised an objection that the witness Mr. S. S. Jowhal Advocate cannot produce the sale agreement because he acted for both the vendor and the purchaser. He also objects to the production of the other documents as they are copies and they require the makers to produce them.
Such documents are contained in the Plaintiff’s list of documents and the supplementary list of documents.
2. Mr. Adan for the Plaintiffs prays that the Plaintiff be allowed to produce copies. That Section 35 and 36 of the Evidence Act give exceptions where documents may be allowed without calling the makers.
3. I have considered the submissions of counsels. I have also considered the relevant provisions of the law.
4. Mr. S. S. Jowhal Advocate told the court that he is the one who drew up a sale agreement between the Plaintiffs and one Stephen N. Karanu. He is the person best placed to produce the said sale agreement.
5. Section 35 (2) of the Evidence Act states;
“In any civil proceedings, the court may at any state of the proceedings, if having regard to all the circumstances of the case, it is satisfied that undue delay are expense would otherwise be caused order that such a statement as is, maintained in subsection (1) of this Section shall be admissible or may, without any such order having been made, admit such a statement or evidence,
a) Notwithstanding that the maker of the statement is available but is not called as a witness.
b) Notwithstanding that the original document is not produced if in lieu, thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or the court may approve, as the case may be.”
6. From the foregoing, I agree with counsel for the Plaintiff that the makers of these documents will be procured with undue delay and expense. This is a court of justice. It ought to deal with substantive justice and not technicalities.
7. No prejudice will be occasioned to the 1st and 2nd Defendants if these documents are admitted as they will have an opportunity to cross examine the witnesses.
8. I find that the Plaintiffs documents No. 1-4, 6-29 fall within the exceptions set out in Section 35 (i) (b) of the Evidence Act. They can be produced without calling the makers.
9. I find the 1st and 2nd Defendants counsel’s objection to their production to be without merit and therefore overruled.
It is so ordered.
DATED, SIGNED and DELIVERED atMombasa on the19th day ofDecember, 2017.
L. KOMINGOI
JUDGE
19/12/2017