[2018] KEELC 4343 (KLR)
The court found that the plaintiff had provided a sufficient explanation for the absence of original documents, namely that they were taken by members involved in church disputes. The court also noted that some of the documents in question are public documents or are already in the possession of both parties, as...
Source-derived case information.
- Citation
- [2018] KEELC 4343 (KLR)
- Parties
- Plaintiff: Registered Trustee Gospel of God Church; Defendant: Elias Rimberia Mborothi; Defendant: Zaverio Nguru Mborothi; Defendant: Moses Kamundi; Defendant: Gediel Kirimi; Defendant: Francis Mucheru; Defendant: Registered Trustee, Gospel of God Church International; Defendant: Nora Ntui Mutai; Defendant: The Land Registrar, Meru; Defendant: The Honourable Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Muranga
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 114 of 2011
- Procedural Posture
- Civil Suit / Ruling on Objection to Production of Documents
- Outcome
- Objection dismissed; plaintiff allowed to produce copies of documents.
- Legal Topics
- Admissibility of Evidence, Production of Documents, Public Documents, Procedural Technicalities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Registered Trustee Gospel of God Church
Plaintiff
Elias Rimberia Mborothi
Defendant
Zaverio Nguru Mborothi
Defendant
Moses Kamundi
Defendant
Gediel Kirimi
Defendant
Francis Mucheru
Defendant
Registered Trustee, Gospel of God Church International
Defendant
Nora Ntui Mutai
Defendant
The Land Registrar, Meru
Defendant
The Honourable Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Objection to Production of Documents
Legal Issues
- 1 Whether the plaintiff can produce copies of documents instead of originals in light of the objection by the defence.
- 2 Whether the loss of original documents due to church wrangles constitutes a sufficient basis for production of copies.
- 3 Whether the documents in question are public documents or already in possession of both parties.
Ratio Decidendi
The court found that the plaintiff had provided a sufficient explanation for the absence of original documents, namely that they were taken by members involved in church disputes. The court also noted that some of the documents in question are public documents or are already in the possession of both parties, as evidenced by their inclusion in both parties' lists of documents. The Civil Procedure Rules allow for the filing of copies of documents, and the Constitution requires that justice not be hindered by procedural technicalities. Therefore, the court declined to uphold the defence's objection and allowed the plaintiff to produce copies of the documents, subject to the defence's right...
Court Disposition
Objection dismissed; plaintiff allowed to produce copies of documents.
Orders
- Plaintiff is at liberty to produce the copies of their documents.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 114 OF 2011
REGISTERED TRUSTEE GOSPEL OF GOD CHURCH......................PLAINTIF
VERSUS
ELIAS RIMBERIA MBOROTHI ….........…….........................1ST DEFENDANT
ZAVERIO NGURU MBOROTHI …....…....……….................2ND DEFENDANT
MOSES KAMUNDI …….....……………………………........3RD DEFENDANT
GEDIEL KIRIMI ….…………….....………………..................4TH DEFENDANT
FRANCIS MUCHERU ………….....…………………............5TH DEFENDANT
REGISTERED TRUSTEE,
GOSPEL OF GOD CHURCH INTERNATIONAL……..........6TH DEFENDANT
NORA NTUI MUTAI ……………………….……….............7TH DEFENDANT
THE LAND REGISTRAR, MERU ………..…………….......8TH DEFENDANT
THE HONOURABLE ATTORNEY GENERAL .....…..….....9TH DEFENDANT
RULING
1. This ruling is in respect of the objection raised by defence counsel to the effect that plaintiff should produce the original documents and not copies. The objection was raised at the point where PW 1 was about to produce the certificate of exemption of 20. 8.1968 which is item I in plaintiff’s list of documents dated 9. 8.2011.
2. Plaintiff’s counsel avers that the original documents were carted away by the members who want to form another church.
3. I have perused the file and I find that the dispute herein has a turbulent history culminating in litigation in various forums. I am inclined to believe that the wrangles in the church may have occasioned loss of documents. As such plaintiffs have laid a basis as to why they do not have the original documents.
4. Secondly, I find that some of the documents listed by plaintiff are public documents. A case in point is the ruling by Judge S. Oguk of 5. 11. 1999.
5. Thirdly, I find that some of the documents plaintiff is referring to are the same as those the defence is relying on. These include:
(i) The certificate of exemption of 20. 8.1968 listed as item 1 in defence list dated 3. 8.2017 which is also item 1 in plaintiff’s list. I note that this is the document that has sparked off the objection.
(ii) Registration of society’s letter of 22. 03. 2005 which is listed as their no. 6 in defence list and it is item no. 3 in plaintiff’s list.
(iii) Certificate of registration of 7. 7.04 which is item no. 4 in defence list and is item no. 5 in plaintiff’s list.
6. Order 3 rule 2 (d) and order 7 rule 5 (d) of the civil procedure rules stipulate that pleadings shall be filed along with “copies” of documents to be relied on at the trial.
7. The defence availed their list to the plaintiff and to the court and hence the existence of the said documents cannot be denied.
8. Defence is at liberty to challenge the authenticity of the said documents during cross examination.
9. However considering the history of this case, the ruling of judge Oguk and taking into account the provisions of article 159, 2 (b) (d) of the constitution that justice shall be done without undue regard to procedural technicalities and that justice shall not be delayed, then I decline to uphold the objection in respect of the production of plaintiff’s documents.
10. Plaintiff is at liberty to produce the copies of their documents.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 28th FEBRUARY, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
C.P Mbaabu holding brief for Kiara for 7th defendant
Murango Mwenda for 3rd, 4th, 5th and 6th defendants
Kiongo for 8th and 9th defendants
Miss Nyaga for 1st and 2nd defendants
Mugo for the plaintiff
HON. LUCY. N. MBUGUA
ELC JUDGE