https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12316

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL CASE NO. E004 OF 2022** **MIDLAND EMPORIUM LIMITED……………………………………………PLAINTIFF** **VERSUS** **MIDLAND HAULIERS LIMITED (under administration)……1ST DEFENDANT** **JOHNES OMBOTO………………………………………………………..2ND DEFENDANT** **JOSEPH GIKONYO T/A** **GARAM INVESTMENTS AUCTIONEERS……………………….3RD DEFENDANTS** **RULING** 1. During the hearing of the defence case (for the 1st, 2nd and 4th Defendants, and specifically while DW3 was testifying), the Plaintiff raised an objection to the production of a valuation report which the said Defendants sought to produce as part of their documentary evidence. The Plaintiff pointed out that the report had been prepared by a professional valuer who was not the witness then on the stand. 2. The Plaintiff’s objection is founded on the contention that DW3 is neither the maker nor the author of the valuation report and is therefore not competent to produce it in evidence. 3. According to the Plaintiff, the report can only properly be produced by its maker unless a legally recognized exception to that requirement has been established. 4. In opposition to the objection, although the 1st, 2nd and 4th Defendants indicated that they intend to call the maker of the report as a witness later in the proceedings, they urged that the court allows DW3 to produce the document. 5. The 1st, 2nd and 4th Defendants submitted that the objection has been raised too late in the proceedings. They argued that both DW1 and DW2 had previously referred to the valuation report during their testimony without any objection from the Plaintiff. 6. They further contended that, during the pre-trial conference, the Plaintiff did not notify the Defendants that it would insist on the maker of the valuation report personally producing the document at trial. 7. Consequently, they argued that the Plaintiff is estopped from raising the present objection after having remained silent throughout the pre-trial process and during the testimony of the earlier defence witnesses. 8. The 3rd Defendant associated himself with and adopted the submissions made by the 1st, 2nd and 4th Defendants. He maintained that the Plaintiff’s objection is without merit and urged the court to dismiss it and allow the valuation report to be produced in evidence. 9. Having considered the positions of the parties on the objection, the issue that arises is not whether the valuation report may ultimately be admitted in evidence, but whether it can properly be produced by DW3, who admittedly is not its maker or author. 10. The starting point is the general rule on documentary evidence. *Section 35(1)* of the *Evidence Act* provides that documents may be proved by the production of the original document or by a copy thereof, subject to the provisions of the *Act.* 11. However, where the contents of a document are sought to be relied upon, the law generally requires that the document be produced by a person who is competent to speak to its preparation, authenticity and contents. 12. This requirement is particularly important where, as in the present case, the document is a valuation report prepared by a professional valuer. Such a report is not a mere administrative or routine document but a professional opinion founded upon the expertise, investigations, methodology and conclusions of its maker. Its evidential value is therefore closely tied to the competence and testimony of the person who prepared it. 13. *Section 48* of the *Evidence Act* recognizes the relevance of opinions of persons specially skilled in a particular field where the court has to form an opinion upon a point of foreign law, science, art or the identity of handwriting or fingerprints. A valuation report falls within the category of expert evidence, and its maker is ordinarily required to attend court to explain the basis of the opinion expressed therein and to be subjected to cross-examination by the opposing party. 14. In the circumstances of this case, it is not disputed that DW3 is not the author of the valuation report. Neither is it suggested that the maker is unavailable, deceased, outside the court’s jurisdiction or that any other legally recognized exception exists to permit the production of the report by a person other than its maker. 15. Indeed, the 1st, 2nd and 4th Defendants expressly indicated that they intend to call the valuer who prepared the report as a witness later in the proceedings. That admission confirms that the maker of the document is available and capable of producing it. 16. Their argument that the Plaintiff’s objection was raised too late is, in my view, without merit. The mere fact that previous witnesses referred to the document does not render DW3 competent to produce it, nor does it amount to a waiver by the Plaintiff of its right to object to its formal production. 17. A party cannot, by silence or failure to object to a witness merely referring to a document, confer competence upon a witness who is otherwise incapable in law of producing that document. 18. Further, the contention that the Plaintiff ought to have indicated during the pre-trial conference that it would require the maker of the report to produce it is equally untenable. The burden of establishing the admissibility and proper production of evidence rests upon the party seeking to rely upon it. 19. A party is not required, during pre-trial directions, to alert its opponent to comply with mandatory provisions of the law relating to production and admissibility of evidence. 20. The doctrine of estoppel under *Section 120* of the *Evidence Act* cannot be invoked to defeat an express requirement of the law relating to production of evidence. Estoppel operates where a party has, by its representation or conduct, caused another party to alter its position to its detriment. It cannot be used to validate evidence which has not been properly produced or to dispense with statutory requirements governing the reception of evidence by a court. 21. In any event, allowing DW3 to produce the valuation report would occasion prejudice to the Plaintiff. The Plaintiff would be deprived of the opportunity to cross-examine the person who prepared the report on matters relating to the valuation process, the assumptions made, the methodology applied and the conclusions reached. Such prejudice cannot be cured merely because the Defendants intend to subsequently call the maker of the report as a witness. 22. The court is also guided by *Article 50(1)* of the *Constitution,* which guarantees every person the right to a fair hearing, including the opportunity to challenge evidence presented against them. 23. Permitting a witness who did not prepare an expert report to produce it would undermine that constitutional safeguard by allowing the admission of evidence through a person who cannot properly explain or defend its contents. 24. Having considered the circumstances of this case, I find that the valuation report is a document whose evidential foundation must be laid by its maker. In the absence of the maker’s testimony or any applicable exception permitting production by another person, DW3 is not competent to produce the said report. 25. Accordingly, the Plaintiff’s objection is merited and is hereby upheld. The valuation report shall not be produced in evidence through DW3. The 1st, 2nd and 4th Defendants shall be at liberty to seek to produce the said report through its maker or in accordance with any other applicable provision of the law. DELIVERED (virtually), DATED and SIGNED this 24th day of July, 2026. **JOE M. OMIDO** **JUDGE** FOR THE PLAINTIFF: **Mr. Ashioya** for **Mr. Havi.** FOR THE 1ST 2ND & 4TH DEFENDANTS: **Mr. Kimani.** FOR THE 3RD DEFENDANT: **Ms. Omondi.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**