https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4732

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI** **ELC PETITION CASE NO. 40 OF 2019** **ILAYS TRADING & TRANSPORTERS COMPANY LIMITED................PETITIONER** **VERSUS** **CABINET SECRETARY TO THE NATIONAL** **TREASURY As trustee of OUR LADY OF MERCY** **SECONDARY SCHOOL................................................................1ST RESPONDENT** **HONOURABLE ATTORNEY GENERAL......................................2ND RESPONDENT** **NATIONAL LAND COMMISSION...............................................3RD RESPONDENT** **OUR LADY OF MERCY** **SECONDARY SCHOOL...............................................................4TH RESPONDENT** **NAIROBI CITY COUNTY.............................................................5TH RESPONDENT** **AND** **THE OCPD KAMUKUNJI..................................................1ST INTERESTED PARTY** **THE OCS, SHAURI MOYO POLICE STATION..................2ND INTERESTED PARTY** **NAIROBI REGIONAL COMMISSIONER.........................3RD INTERESTED PARTY** **THE NAIROBI DEPUTY** **COMMISSONER, KAMUKUNJI.......................................4TH INTERESTED PARTY** **RULING** 1. On 26th February, 2026 and while Abdullahi Abdi Hirabe (PW1) was under examination in chief, Mr. Muhatia, the learned counsel for the 4th respondent raised an objection as to the production of agreements which had not complied with the **Stamp Duty Act** and **Registration of Documents Act**. 2. Mr. Kinyanjui the learned counsel for the 5th respondent raised an objection as to the production of documents on grounds that PW1 is not the maker of the same. He also contends that none of the documents have been produced as certified copies of the original. 3. In response, Mr. Kalii opposed the objections and submitted that the objections had not been raised in the pleadings or by way of prior notice. The counsel argued that the objections were being raised belatedly and that some of them contradicted the contents of the statement of S.G. Mwangi dated 24 January, 2023. The counsel further submitted that the issue before the court was not one of admissibility but rather the evidential weight to be attached to the documents, which could properly be addressed through cross-examination. 4. In reply, Mr. Muhatia maintained that parties are required to comply with the law governing admissibility of documentary evidence and that failure to comply renders such documents inadmissible. In rejoinder, Mr. Kinyanjui, submitted that objections to documentary evidence are properly raised at the stage of production and that the 5th Respondent could not have anticipated the documents that the witness would seek to produce. The counsel further submitted that S.G. Mwangi was no longer an employee of the County Government and that the 5th Respondent could not be bound by matters attributed to him. 5. The court is now called upon to determine the objections raised as to the admissibility of documents contained in the petitioner’s bundle of documents. There are two objections, namely, the production of documents that are neither duly stamped or registered and involvement of a third party who has not been called to testify and lack of certified copies of the original documents. 6. On admissibility of the agreements, it is settled law that an instrument chargeable with stamp duty and which has not been stamped is inadmissible until the requisite stamp duty has been paid. Compliance with **Section 19** of the **Stamp Duty Act** is an issue that goes to the admissibility of documents. In absence of the same, the court cannot ignore such deficiency. Secondly, where registration is required for purposes of enforcing rights, the court must consider the legal effect of non-registration. In my view, admissibility and the evidentiary value of the documents must be assessed in light of the applicable statutory provisions. 7. Having said this, it is my view that the petitioner may still produce these documents pursuant to **Section 20 (1)** of the **Stamp Duty Act**. This court is empowered to direct the same as provided under **Section 19 (3)** of the **Act**. Thus, the petitioner is hereby granted leave to comply with **Section 19 (1)** of the **Act** as far as the agreements sought to be produced are concerned. 8. On whether some of the documents emanate from parties who are not witnesses and on lack of certification of the copies, admissibility of documentary evidence is explicitly provided for under the **Evidence Act**. The contents of a document can be proved by either primary or secondary evidence. Secondary evidence is provided under **Section 66 of the Act** to include certified copies of the original. I note that the learned counsel for the petitioner has not explained the production of uncertified copies and the reliance of a maker who is not a witness. I find that the production of the secondary evidence without certification has not been demonstrated. 9. From the above, the objections raised by both counsel have merit. In the interest of justice, and to enable fair determination of the dispute, the petitioner is hereby directed to comply with **Section 20 (1)** of the **Stamp Duty Act** and the **Registration of Documents Act**. The petitioner is hereby directed to comply with **Section 66** of the **Evidence Act** by obtaining certified copies of the documents intended to be produced. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 23RD DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **23/07/2026.** ***In the presence of:*** *Mr. Benson Agunga - Court assistant* *Mr. Kalii holding brief for Mr. Juma Musa for the Petitioner* *Mr. Harrison Kinyanjui for the 5th Respondent* *No appearance for the rest of the Respondents*