[2006] KEHC 2098 (KLR)
The court found that the typed copy of minutes constituted secondary evidence. None of the statutory exceptions under section 68 of the Evidence Act allowing secondary evidence had been invoked or established by the Objector. The original document was not produced, and the translation was uncertified. Therefore, the...
Source-derived case information.
- Citation
- [2006] KEHC 2098 (KLR)
- Parties
- Applicant: Jane Wambui; Respondent: Stephen Mutembei; Respondent: Peter Mwangi Waweru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 691 of 1995
- Procedural Posture
- Succession Cause / Ruling on Evidentiary Objection
- Outcome
- Objection upheld; document excluded from evidence.
- Judges
- DW Mbuteti
- Legal Topics
- Admissibility of Evidence, Secondary Evidence, Documentary Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wambui
Applicant
Stephen Mutembei
Respondent
Peter Mwangi Waweru
Respondent
Procedural Posture
Succession Cause / Ruling on Evidentiary Objection
Legal Issues
- 1 Whether the typed copy of minutes, being secondary evidence, is admissible in the absence of the original document or compliance with statutory exceptions.
- 2 Whether unauthenticated alterations and lack of certified translation affect admissibility of the document.
Ratio Decidendi
The court found that the typed copy of minutes constituted secondary evidence. None of the statutory exceptions under section 68 of the Evidence Act allowing secondary evidence had been invoked or established by the Objector. The original document was not produced, and the translation was uncertified. Therefore, the document could not be admitted into evidence. The objection by the Petitioners was upheld, and the document was excluded from the record.
Court Disposition
Objection upheld; document excluded from evidence.
Orders
- The typed copy of minutes is not admitted into evidence.
- The Petitioners' objection is upheld with costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Succession Cause 691 of 1995
IN THE MATTER OF THE ESTATE OF WAWERU MWANIKI GATUHA
(DECEASED)
JANE WAMBUI………………………….............................…….OBJECTOR/APPLICANT
VERSUS
STEPHEN MUTEMBEI……….......................….…....1ST PETITIONER/RESPONDENT
PETER MWANGI WAWERU……........................…..2ND PETITIONER/RESPONDENT
R U L I N G
In the course of the testimony of PW4 (GICHINGA KIIGE MUNDIA), the Petitioners’ learned counsel objected to admission into evidence of a certain document which allegedly constituted a typed copy of minutes of a meeting of village elders supposedly held in or about the year 1992, and taken in the Kikuyu language. The person(s) who took down the minutes and/or later translated and typed them was/were not before court. The grounds for the objection were that the typed minutes had various unauthenticated alterations; that they were not a primary document but secondary evidence; that the translation was not under certificate; and that the original minutes written in Kikuyu language were not attached to the typed copy for purposes of authentication. The reply of the learned counsel for the Objector was that the alterations were merely to correct typographical errors; that the typed document was signed; and that the same was vital to the Objector’s case.
I have considered those submissions of the learned counsels. Under section 67 of the Evidence Act, Cap. 80, documents must be proved by primary evidence except in the cases set out in section 68 of the Act where secondary evidence may be given of the existence, condition or contents of a document. The definition of primary evidence is to be found in section 65 of the same Act. Generally speaking, primary evidence means the document itself produced for the inspection of the court. There is no dispute that the typed copy of minutes sought to be introduced in evidence by PW4 constitutes secondary evidence. None of the exceptions set out in section 68 aforesaid have been invoked, and none of them have been established, either by the testimony of PW4 or by any other circumstance placed before the court. I therefore find that the document in question cannot in law be produced in evidence. I so hold. The Petitioners’ objection is thus upheld with costs. Order accordingly.
DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF JUNE, 2006.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 9TH DAY OF JUNE, 2006.