[2023] KEELC 18679 (KLR)
The court found that the witness on the stand was familiar with and had prepared the document in question, even though he was not the signatory. There was no evidence that the document was procured in violation of constitutional principles or that its authenticity had been challenged. The court further relied on the...
Source-derived case information.
- Citation
- [2023] KEELC 18679 (KLR)
- Parties
- Plaintiff: Anastasia Wanjira Musindi; Defendant: Antony Mwangi Muthoni; Defendant: City Council of Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 136 of 2012
- Procedural Posture
- Environment and Land Case / Ruling on Objection to Production of Document at Hearing
- Outcome
- objection dismissed; document admitted as evidence
- Judges
- LN Mbugua
- Legal Topics
- Admissibility of Evidence, Documentary Evidence, Production of Documents, Pre Trial Objections
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anastasia Wanjira Musindi
Plaintiff
Antony Mwangi Muthoni
Defendant
City Council of Nairobi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Objection to Production of Document at Hearing
Legal Issues
- 1 Whether a witness who prepared but did not sign a document can produce it as evidence.
- 2 Whether objections to production of documents not raised at pre-trial can be entertained during the main hearing.
- 3 Whether the production of the document violates constitutional or statutory principles.
Ratio Decidendi
The court found that the witness on the stand was familiar with and had prepared the document in question, even though he was not the signatory. There was no evidence that the document was procured in violation of constitutional principles or that its authenticity had been challenged. The court further relied on the Practice Directions, which prohibit objections to document production at the main hearing if not raised at pre-trial. The plaintiff's counsel's objection was therefore dismissed, and the document was allowed to be produced by the witness, with the plaintiff retaining the right to cross-examine on its veracity and legitimacy.
Court Disposition
objection dismissed; document admitted as evidence
Orders
- The objection to the production of the document is dismissed.
- The document in question shall be produced in evidence by the witness on the stand.
Full Case Text
Judgment text and source record
28 paragraphs
Musindi v Muthoni & another (Environment & Land Case 136 of 2012) [2023] KEELC 18679 (KLR) (4 July 2023) (Ruling)
Neutral citation: [2023] KEELC 18679 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 136 of 2012
LN Mbugua, J
July 4, 2023
Between
Anastasia Wanjira Musindi
Plaintiff
and
Antony Mwangi Muthoni
1st Defendant
City Council of Nairobi
2nd Defendant
Ruling
1. This ruling concerns the objection raised by counsel for the plaintiff relating to the production of a certain document allegedly signed by County Chief Officer in charge of lands. At the point of objection, the witness for the 2nd defendant was on the dock and was proceeding to produce the document in question as their exhibit. Counsel for the plaintiff avers that the maker of the document should produce the same. Adding that the CEC in charge of lands is not immune to appearing before this court to give evidence in respect of the said document.
2. Counsel for the 1st defendant contends that the witness has owned the contents of the document, therefore he should be allowed to produce the same.
3. Counsel for the 2nd defendant echoed the sentiments advanced by the counsel for the 1st defendant, adding that it is not uncommon in such an organization for documents to be prepared by one person and be signed by another person.
4. In the final rejoinder by counsel for the plaintiff he urges the court to follow the law as espoused under the Evidence Act and not the practice of organisations.
5. I have considered the arguments raised herein. This is a situation where the witness on the dock has indicated that he is familiar with the document in question as he is the one who had prepared it.
6. In the case of Ntarangwi M’Ikiara v Jackson Munyua Mutuera [2018] eKLR, I cited the case of Evangeline Nyegera (suing as the legal representative of Felix M’Ikiugu alias M’Ikiugu Jeremiah M’Raibuni (deceased) vs Godwin Gachagua Githui, where the Court of Appeal Civil Appeal No. 28 of 2016 held that;“The test for admission of evidence is relevancy…... There is need for fair determination of the dispute in the suit which may not be possible if a party is denied the opportunity to adduce relevant evidence. We hold the view that the appellant should not be barred from adducing secondary evidence through copies of the original documents. It is imperative that the nature of the documents, their number and relevance is shown. The other party will have an opportunity to cross examine on veracity and legitimacy if it be necessary”.
7. The Environment and Land Court has Practice Directions vide gazette No 5178 dated July 25, 2014 where by under Rule 28 (g) objections on the production of documents are not supposed to be entertained in the main hearing if the issue was not raised during Pre-Trial Exercise. And in the instance case, this court notes that the issue relating to the objection was never raised before the suit was set down for hearing.
8. Further, it is noted that the witness has claimed that he prepared the documents. Who is the other maker who can be called to produce the document? None!
9. From the foregoing analysis, I find that no evidence has been advanced by the plaintiff’s counsel to indicate that the document in question was procured in a manner which violates the Constitutional principles (particularly the provisions of Article 50 (4) of the Constitution. Further the authenticity of the contents in the said document have not been challenged, if anything plaintiff’s counsel’s concern is that the document was not signed by the witness on the dock.
10. Finally, I find that the plaintiff’s side will have a chance to cross examine the witness on the veracity and legitimacy of the said document.
11. In the end, the objection is hereby dismissed and the document in question shall be produced in evidence by the witness on the stand.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JULY, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Olewe for plaintiffNjugi for 1st DefendantOwande holding brief for Mrs. Oyaro for 2nd DefendantPlaintiffBenson Gichohi for the City CouncilCourt clerk: June