[2018] KEELC 3655 (KLR)
The court found that the defendant, as administrator of the deceased's estate, held the original agreements not in her own right but in a representative capacity. Since she was not a party signatory to the documents and did not deny possession of the originals, and a proper basis for secondary evidence had been...
Source-derived case information.
- Citation
- [2018] KEELC 3655 (KLR)
- Parties
- Plaintiff: Florence Nasambu Khaemba; Plaintiff: Elizabeth Chemakal Jackson; Defendant: Selina Chelimo Jackson
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 148 of 2015
- Procedural Posture
- Land Case / Ruling on Admissibility of Documentary Evidence
- Outcome
- Objection overruled; copies of agreements admitted as evidence; hearing to proceed.
- Judges
- FM Njoroge
- Legal Topics
- Admissibility of Evidence, Production of Documents, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Nasambu Khaemba
Plaintiff
Elizabeth Chemakal Jackson
Plaintiff
Selina Chelimo Jackson
Defendant
Procedural Posture
Land Case / Ruling on Admissibility of Documentary Evidence
Legal Issues
- 1 Whether copies of agreements can be admitted as evidence when the originals are held by the defendant as administrator of the deceased's estate.
- 2 Whether the absence of a notice to produce originals precludes the admission of copies.
Ratio Decidendi
The court found that the defendant, as administrator of the deceased's estate, held the original agreements not in her own right but in a representative capacity. Since she was not a party signatory to the documents and did not deny possession of the originals, and a proper basis for secondary evidence had been established, the court held that it was proper to admit the copies of the agreements as evidence. The objection to their admissibility was therefore overruled.
Court Disposition
Objection overruled; copies of agreements admitted as evidence; hearing to proceed.
Orders
- Copies of the agreements dated 1/9/1998, 4/11/1998, and 31/8/1998 are admitted as P. Exhibit 2, P. Exhibit 3, and P. Exhibit 4 respectively.
- Objection to admissibility of copies is overruled.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 148 OF 2015
ESTATE OF THE LATE JACKSON LOMERI LOMACHAR (represented by
FLORENCE NASAMBU KHAEMBAand
ELIZABETH CHEMAKALJACKSON...........................................PLAINTIFFS
VERSUS
SELINA CHELIMO JACKSON........................................................DEFENDANT
R U L I N G
1. The agreements dated 31/8/1998 and 1/9/1998 are proposed to be produced in the form of copies. The basis has been laid for the production of copies in that it is alleged that the originals are in the hands of the defendant, not as a person who holds them in her own right but as an administrator of the deceased’s estate. The distinction is drawn that where she holds them in that capacity rather than in her own capacity as a party signatory to the document, then the copies can be produced as evidence.
2. I have considered this objection. It is true that the defendant was not a party named in the documents whose copies are sought to be produced. Neither is it denied that she was in possession of the originals thereof; the contention that stands out is that she was not issued with a notice to produce. I find that a proper basis having been laid, and the defendant not being a party to the said documents as a signatory, and the documents being said to be held on behalf of the deceased’s estate by her as an administrator, it is proper to admit the said copies of the said documents as evidence.
3. Accordingly they are hereby admitted as:-
P. Exhibit 2 Agreement of 1/9/1998
P. Exhibit 3 Agreement of 4/11/1998
P. Exhibit 4 Agreement of 31/8/1998
The objection is therefore overruled. Hearing to proceed.
Dated, signed and delivered at Kitale on this 19th day of March, 2018.
MWANGI NJOROGE
JUDGE