[2023] KEHC 27216 (KLR)

Misoi v Bor & 2 others (Civil Appeal E008 of 2022) [2023] KEHC 27216 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27216 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Civil Appeal E008 of 2022

JR Karanja, J

December 14, 2023

Between

Nicholas Kiplagat Misoi

Appellant

and

Peris Bor

1st Respondent

Board of Management, Stephen Kositany Girls Secondary School

2nd Respondent

Director of Public Prosecution

3rd Respondent

Judgment

1. This appeal arises from the ruling of the Principal Magistrate delivered on March 9, 2022 in SPMCC No. 35 of 2020 at Kapsabet in which the Appellant as the Plaintiff sued the first and second Respondents and enjoined the third Respondent as an interested party praying for general and aggravated or exemplary damages against them for defamation, malicious arrest and malicious prosecution.

2. It was pleaded that the first Respondent, Peris Bor, was then the Head teacher and Principal of the Second Respondent, Stephen Kositany Girls Secondary School when on diverse dates between the months of March/ May 2019 she maliciously made and published defamatory statements against the Appellant implicating him in the commission of a crime thereby causing him to be arrested and arraigned at the Kapsabet Magistrate’s Court for a Criminal Offence related to computer misuse and cybercrime.

3. However, in a ruling made on the October 15, 2019 the Criminal charge was terminated by the court and the Appellant discharged accordingly. Thereafter, the appellant filed the present suit and enjoined the interested party, Director of Public Prosecution, in his role in the prosecution and discharge of the Appellant.The Appellant prayed for general damages against the Respondents jointly and severally.

4. In their joint statement of defence, the Respondents, denied the allegations made against themselves by the Appellant and contended that they never made any malicious or defamatory allegations against the Appellant and that the alleged criminal case was commenced by the interested party pursuant to the findings from investigations carried out by the police through the Directorate of Criminal Investigations.

5. The Respondents further contended that the termination of the Criminal charge/s against the Appellant t was initiated by the interested party rather than the court in its ruling of the October 15, 2019 and that the present suit is an abuse of the court process by the Appellant seeking to settle perceived personal scores with the first Defendant. All in all, the Respondent prayed for dismissal of the suit with costs.The Interested party, it would appear, did not enter appearance in the matter, file defence nor participate in the proceedings leading to the impugned ruling.

6. Basically, this is an appeal from an interlocutory ruling made by the trial court on the October 15, 2019 for which leave to appeal was granted to the Appellant.The appeal was canvassed by way of written submissions with both parties filing their submissions through Balusi and Smart Advocates for the Appellant and Kenei and Associates Advocates for the Respondents.This court has given due considerations to the grounds of appeal against the rival submissions. Its role at this juncture was to revert back to the position of the trial court and re-consider the application with a view to arriving at its own conclusion.

7. As may deciphered from the original lower court record the hearing of the suit before the trial court is yet to be completed and final judgment delivered. The effect of this appeal is therefore to delay the hearing and final determination of the basic suit and most unfortunately, subject the litigants to unnecessary costs. More so, considering that any dissatisfaction with a ruling or an interlocutory application could well be addressed on appeal to a superior court against a final judgment rendered by a trial court.

8. Be that as it may, the appeal clearly deals with the principles applicable in the receipt and admission of documentary evidence in a trial or simply put, admissibly of evidence in Civil Proceedings. As may be deciphered from the record the Plaintiff/ Appellant (PW1) was in the process of testifying in chief while relying on and adopting his witness statement when he referred to his lists of documents dated March 4, 2020 and 20th January 2020 (sic) but should be 2021 as it was filed on February 20, 2021 and did not precede the first list dated March 4, 2020 and filed on the same day.

9. The Appellant after referring to the lists attempted to produce all the documents listed therein as his evidence in support of his claim against the Respondent. It was at that juncture that the Respondents through their Learned Counsel, Mr. Kenei, raised an objection to the production of some of the documents being documents No. 17, 18, 19, 20, 21, and 22 for reasons that the Plaintiff was not the author of the documents and that document No. 21 was not annexed to the list. Further that, document No. 22 was not in compliance with Section 106 (C) of the Evidence Act.In response, Learned Counsel, Mr. Balusi, appearing for the Plaintiff stated as follows: -“item No. 17 is a statement made by the 1st Defendant at the station. I seek to produce it Under Section 35 Evidence Act.”

10. Immediately thereafter, the trial court rendered its ruling on the objection in the following terms: -“the witness in the witness box is not the author of the documents he seeks to produce. Secondly, he seeks to produce documents of electronic nature without applying Section 106 (c) of the Evidence Act the objection is merited.”This was followed by the Plaintiffs’ Counsel seeking leave to appeal against the ruling to uphold the objection. The court ordered that the hearing proceeds even as it granted the pit leave to appeal.

11. Basically, the contents of a document may be proved either by primary or secondary evidence. Whereas primary evidence connotes the document itself, secondary evidence include copies of the document.In essence, documents must be proved by primary evidence but may be proved by secondary evidence only in special circumstances as stipulated in Section (1) of the Evidence Act.Statements in documents do constitute documentary evidence as to the facts in issue and may be produced in Civil Proceedings as stipulated in Section 35 of the Evidence Act.

12. Under Section 35 (1) of the Act, in any Civil Proceedings where direct oral evidence of a fact would be admissible any statement made by a person in a document and tending to establish that fact shall on production of the original document be admissible as evidence of that fact on conditions stipulated in sub-section (a) and (b) of the provision which clearly makes it incumbent for the maker of the documents to produce it in court unless special circumstances exist to prevent him from so doing.

13. However, Under Section 35(2) of the Act;A statement may be admissible even without calling as a witness the maker of the document. The provision stipulates that: -“In any civil proceedings the court may at any stage of the proceedings, if having regard to all the circumstances of the case is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is, mentioned in sub-Section (1) of this section shall be admissible or may, wihtout any such order having been made admit such a statement in evidence -a.Notwithstanding that the matter of the statement is available but is not called as a witness;b.Notwithstanding that the original document is not produced in lieu thereof there is produced a copy of the original documents or of the material part thereof certified to be a true copy in such manner as may be specified in the order or the court may approve, as the case may be.”

14. Although the objection raised by the Defendant was targeted at the documents No. 17, 1`8, 19, 20, 21 and 22 the Plaintiffs response to the objection primarily targeted document No. 17 and therefore the impugned ruling was basically on document No. 17 and not the rest of the documents for which no response was forthcoming from the Plaintiff having not being given adequate opportunity to address the same as may be borne by the court record.

15. It would therefore follow that there was no considered ruling with regard to the rest of the documents, yet the upholding of the objections by the court had the effect of applying to all the specified documents rather than documents No. 17 on its own. The document is contained in the Plaintiffs’ second list of documents dated January 20, 2020 (sic) and described as a police statement made by the first Defendnt (Peris Bor)

16. In this court’s opinion and with the greatest respect to the trial court, the impugned ruling was rather rudimentary or inchoate in as much as it was made in haste and failed to address the fact whether or not the Plaintiff had demonstrated that he fell within the exceptions or parameters set out in Section 35 (2) of the Evidence Act or even whether he actually failed to apply Section 106 C of the Evidence Act regarding electronic evidence.

17. For all the foregoing reasons, this appeal is merited on all the eight (8) supporting grounds and is allowed only to the extent that the impugned ruling dated March 9, 2022 be and is hereby set aside with orders that the objection regarding the admissibility of all the specified documents No. 17, 18, 19, 20, 21 and 22 be reverted back to the trial court for fresh hearing and consideration in accordance with the law.The parties shall bear their own costs of the appeal.Ordered accordingly.

DELIVERED AND DATED THIS 14TH DAY OF DECEMBER, 2023J. R. KARANJAH,JUDGE