[2017] KEELC 3190 (KLR)
The court found that the plaintiff had sufficiently demonstrated the loss of the original receipt by producing a police abstract and O.B. extract. The court held that section 68(a) of the Evidence Act was not applicable in this case, and therefore, the requirement for notice to produce under section 69 did not...
Source-derived case information.
- Citation
- [2017] KEELC 3190 (KLR)
- Parties
- Plaintiff: Julia Wanjiru Kiiru (Suing as the administratix of the Estate of the late Jecinta Wangui Keiru); Defendant: Doris Ochieng Oluoch; Defendant: R. O. Okello; Defendant: George L. A. Bengo; Defendant: Director Department of Land Adjudication & Settlement; Defendant: Settlement Fund Trustees; Defendant: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 567 of 2012
- Procedural Posture
- Land and Property / Interlocutory Application on Admissibility of Secondary Evidence
- Outcome
- Application allowed; plaintiff permitted to produce photocopy of lost receipt as secondary evidence.
- Judges
- A Ombwayo
- Legal Topics
- Admissibility of Secondary Evidence, Lost Documents, Notice to Produce, Evidence Act Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julia Wanjiru Kiiru (Suing as the administratix of the Estate of the late Jecinta Wangui Keiru)
Plaintiff
Doris Ochieng Oluoch
Defendant
R. O. Okello
Defendant
George L. A. Bengo
Defendant
Director Department of Land Adjudication & Settlement
Defendant
Settlement Fund Trustees
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Land and Property / Interlocutory Application on Admissibility of Secondary Evidence
Legal Issues
- 1 Whether the plaintiff can produce a photocopy of a lost receipt as secondary evidence under the Evidence Act.
- 2 Whether notice to produce was required under section 69 of the Evidence Act in the circumstances.
Ratio Decidendi
The court found that the plaintiff had sufficiently demonstrated the loss of the original receipt by producing a police abstract and O.B. extract. The court held that section 68(a) of the Evidence Act was not applicable in this case, and therefore, the requirement for notice to produce under section 69 did not arise. The court concluded that the plaintiff was entitled to produce the photocopy of the receipt as secondary evidence in accordance with the law, and ordered that PW1 be recalled to produce the document.
Court Disposition
Application allowed; plaintiff permitted to produce photocopy of lost receipt as secondary evidence.
Orders
- Plaintiff is allowed to rely on PMFI 5 (photocopy of receipt) as evidence.
- PW1 to be recalled to produce the document in court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 567 OF 2012
JULIA WANJIRU KIIRU (Suing as the administratix of the
Estate of the late JECINTA WANGUI KEIRU……………………………………………......………PLAINTIFF
VERSUS
DORIS OCHIENG OLUOCH……………………………………………………………………..1ST DEFENDANT
R. O. OKELLO………………………………………………………..…………………………..2ND DEFENDANT
GEORGE L. A. BENGO…………………………………………………………………………..3RD DEFENDANT
DIRECTOR DEPARTMENT OF LAND ADJUDICATION & SETTLEMENT…...................…….4TH DEFENDANT
SETTLEMENT FUND TRUSTEES……………………………………………………...………..5TH DEFENDANT
THE HON. ATTORNEY GENERAL………………………………………………….....…………6TH DEFENDANT
RULING
Mr. Njuguna prays that the photocopy of the receipt named as PMFI.5 be produced as evidence in court. The receipt was issued in Nairobi. The original is list. Mr. Njuguna relies on section 68 of the Law of Evident Act. Mr. Omwenga opposes the application and states that the plaintiff shall have filed a notice under section 69 of the Evidence Act. The proper procedure should be followed according to Mr. Omwenga.
Mr. Odongo relies on section 68 1(a) and 69 of the Evidence Act, thus, notice to produce was not issued. Section 66 of the Evidence Act provides that security evidence includes:
INSERT
Section 67 provides that documents must be provided by privy evidence except in the cases hereinafter mentioned.
Section 68 which provides for proof of documents by security evidence provides that security evidence may be given of the existence, condition or contention of a document in the following cases:
INSERT
The applicant has demonstrated that the original receipt is lost and has produced a police abstract and the O.B. extract for 29. 10. 2015. Section 68(a) is not applicable, therefore, section 69 is not applicable as notice to produce is required only in respect of the provisions of 68(1)(a).
The upshot of the above is that the plaintiff is allowed to rely on PMFI 5 to be produced in accordance with the law and that PW1 to be recalled to produce the document.
DATED AND DELIVERED AT ELDORET THIS 14TH DAY OF MARCH, 2017.
A. OMBWAYO
JUDGE