[2019] KEELC 4153 (KLR)
The court found that annexures marked 'without prejudice' in both the 3rd defendant's and the 1st and 2nd defendants' affidavits are inadmissible as evidence, as such communications are protected by privilege and cannot be used against the parties making them unless a binding agreement is reached. However, the...
Source-derived case information.
- Citation
- [2019] KEELC 4153 (KLR)
- Parties
- Plaintiff: Josephine Nderu; Defendant: Bank of Baroda; Defendant: Skyheight Development Ltd; Defendant: Papeas Lewis Nderu Kinyanjui; Defendant: Land Registrar, Uasin Gishu; Defendant: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 27 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Applications to Expunge Affidavits/annexures
- Outcome
- partially allowed
- Judges
- A Ombwayo
- Legal Topics
- Admissibility of Evidence, Without Prejudice Communications, Expunging Affidavit Annexures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephine Nderu
Plaintiff
Bank of Baroda
Defendant
Skyheight Development Ltd
Defendant
Papeas Lewis Nderu Kinyanjui
Defendant
Land Registrar, Uasin Gishu
Defendant
Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Applications to Expunge Affidavits/annexures
Legal Issues
- 1 Whether annexures marked 'without prejudice' in affidavits are admissible as evidence.
- 2 Whether the affidavits containing such annexures should be struck out or only the annexures expunged.
Ratio Decidendi
The court found that annexures marked 'without prejudice' in both the 3rd defendant's and the 1st and 2nd defendants' affidavits are inadmissible as evidence, as such communications are protected by privilege and cannot be used against the parties making them unless a binding agreement is reached. However, the presence of such annexures does not warrant striking out the entire affidavits; only the inadmissible annexures should be expunged. The court therefore ordered that all annexures marked 'without prejudice', specifically PLNK V and DK 5, be expunged from the record, but declined to strike out the respective affidavits. Costs were ordered to be in the cause.
Court Disposition
partially allowed
Orders
- All annexures marked 'without prejudice', including PLNK V in the affidavit of the 3rd defendant and DK 5 in the affidavit of Divyesh Kotecha, are expunged from the record.
- The respective affidavits are not struck out.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 27 OF 2019
JOSEPHINE NDERU ............................................PLAINTIFF
VERSUS
BANK OF BARODA.....................................1ST DEFENDANT
SKYHEIGHT DEVELOPMENT LTD.......2ND DEFENDANT
PAPEAS LEWIS NDERU KINYANJUI.....3RD DEFENDANT
LAND REGISTRAR, UASIN GISHU........4TH DEFENDANT
ATTORNEY GENERAL ............................5TH DEFENDANT
RULING
Mr. Mwetichlearned counsel for the 1st and 2nd defendants makes an oral application that the whole of the replying affidavit of the 3rd defendant sworn on 13th March, 2019 be expunged from record for annexing documents with privileged information. Mr. Wahinya, learned counsel for the 3rd defendant on the other hand applies that the replying affidavit of Divyesh Kotecha be struck out for annexing privileged information. He quips that what is good for the goose is good for the gander.
I have perused the 3rd respondent’s replying affidavit sworn on 13th March, 2019 and do find that the deponent has annexed PLNK V, a letter written on a without prejudice basis whereas the 1st and 2nd defendants have in the affidavit of Divyesh Kotecha annexed DK 5 that was written on a without prejudice basis. It is not clear whether the other annexures were written on a without prejudice basis as some are not legible.
In law, statements made in a document marked on a without prejudice or made verbally on a without prejudice basis, in a genuine attempt to settle a dispute, will generally not be admissible in court against the person making the statement. The treatise Halsbury’s Laws of England vol 17 at paragraph 213 states-
“The contents of a communication made on a without prejudice basis are admissible when there has been a binding agreement between the parties arising out of it, or for the purpose of deciding whether such an agreement has been reached and the fact that such communication have been made (though not their contents) is admissible to show that negotiations have taken place, but they are otherwise inadmissible.”
In the case of Lochab Transport Ltd V Kenya Arab Orient Insurance Ltd (1986) eKLR,it was held thus –
“if an offer is made on a without prejudice basis evidence cannot be given on this offer. If this offer is accepted, a contract is concluded, one can give evidence of the contract and give evidence of that ‘without prejudice’ letter”
The upshot of the above is that all annexures marked “without prejudice” including annexure PLNK V in the affidavit of the 3rd defendant and annexure DK 5 in the affidavit of Divyesh Kotecha are expunged. I decline to strike out the respective affidavits. Costs in the cause.
Dated and Delivered at Eldoret this 21st March, 2019.
ANTONY OMBWAYO
JUDGE