[2017] KEMC 97 (KLR)
The court held that since the 1st and 2nd respondents were served with a notice to produce the originals of form 32A and failed to respond or produce them, they are estopped from objecting to the production of copies. Therefore, the copies of form 32A are admissible and may be produced as exhibits. However, with...
Source-derived case information.
- Citation
- [2017] KEMC 97 (KLR)
- Parties
- Applicant: Odongo Victor Robert; Respondent: Independent Electoral & Boundaries Commission; Respondent: The Returning Officer Kagan Ward Ezekiel Juma Otieno; Respondent: Onyango Philemon
- Court
- Magistrate's Court
- Court Station
- Election Petition in Magistrate Courts
- Jurisdiction
- Kenya
- Case Number
- Election Petition 1 of 2017
- Procedural Posture
- Election Petitions / Interlocutory Ruling on Admissibility of Documentary Evidence
- Outcome
- Partial grant and partial rejection of application for admission of documentary evidence.
- Legal Topics
- Admissibility of Evidence, Production of Documents, Notice to Produce, Certification of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Odongo Victor Robert
Applicant
Independent Electoral & Boundaries Commission
Respondent
The Returning Officer Kagan Ward Ezekiel Juma Otieno
Respondent
Onyango Philemon
Respondent
Procedural Posture
Election Petitions / Interlocutory Ruling on Admissibility of Documentary Evidence
Legal Issues
- 1 Whether copies of form 32A, death certificates, and burial permits can be admitted as exhibits when not produced by their makers.
- 2 Whether failure by the respondents to comply with a notice to produce originals precludes them from objecting to the production of copies.
Ratio Decidendi
The court held that since the 1st and 2nd respondents were served with a notice to produce the originals of form 32A and failed to respond or produce them, they are estopped from objecting to the production of copies. Therefore, the copies of form 32A are admissible and may be produced as exhibits. However, with respect to the death certificates and burial permits, the court found that certification by an advocate who is not the maker of the documents does not satisfy the requirements for admissibility. Such documents can only be produced by their makers, and thus the application to admit them as exhibits was rejected.
Court Disposition
Partial grant and partial rejection of application for admission of documentary evidence.
Orders
- Form 32A copies to be produced as Exhibit 1 (bundle).
- Application to admit death certificates and burial permits as exhibits is rejected; they can only be produced by the makers.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT HOMA BAY
ELECTION PETITION NO: 1 OF 2017
ODONGO VICTOR ROBERT………………………………PETITIONER
VERSUS
INDEPENDENT ELECTORAL & BOUNDARIES
COMMISSION………………………………………………1ST RESPONDENT
THE RETURNING OFFICER KAGAN WARD
EZEKIEL JUMA OTIENO……………………..…………..2ND RESPONDENT
ONYANGO PHILEMON…………………………………….3RD RESPONDENT
RULING
The Respondents have opposed the production of copies of the form 32 A, death certificates and burial permits as exhibits on the ground that they can only be produced by the makers.
I have considered the objectors and the responses by the petitioner. I have noted that the petitioner had issued a notice to produce pursuant to sec 69 of the Evidence Act to the 1st and 2nd Respondents. The same has not been responded to up to now. Having failed to respond and or produce the originals they cannot now turn around and object to the production of the copies. Accordingly, with respect to form 32 A, I do direct that this be produced as Exh 1 (bundle).
With respect to the death certificate and the burial permits, I note that the same have been certified by an advocate. Ordinarily a document should be certified as an original by the maker and such a document. I do not think the advocate who certified the disputed documents was the maker. Accordingly, I reject the application that the certificate of death and burial permit be produced as an exhibit. They can only be produced by the makers.
T.OBUTU SPM
1/11/2017