[2018] KEELC 3921 (KLR)
The court found that the plaintiff had provided a reasonable explanation for the absence of the original agreement, namely that it was lost while travelling. The court also noted that the defendants had not previously objected to the use of copies of the agreement in the proceedings and had not challenged the...
Source-derived case information.
- Citation
- [2018] KEELC 3921 (KLR)
- Parties
- Plaintiff: Richard Toroitich; Defendant: Mike K. Lelmet; Defendant: Elisheba C. Lelmet; Defendant: Pauline J. Lelmet; Defendant: Esther J. Lelmet (suing as administrators of the estate of William Cheruiyot Lelmet)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 17 of 2014
- Procedural Posture
- Land Case / Ruling on Admissibility of Documentary Evidence
- Outcome
- Application to admit copy of agreement as evidence allowed.
- Judges
- FM Njoroge
- Legal Topics
- Admissibility of Evidence, Secondary Evidence, Lost Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Toroitich
Plaintiff
Mike K. Lelmet
Defendant
Elisheba C. Lelmet
Defendant
Pauline J. Lelmet
Defendant
Esther J. Lelmet (suing as administrators of the estate of William Cheruiyot Lelmet)
Defendant
Procedural Posture
Land Case / Ruling on Admissibility of Documentary Evidence
Legal Issues
- 1 Whether a copy of the agreement dated 2/4/2003 should be admitted as evidence despite the original being unavailable.
- 2 Whether the plaintiff has established a sufficient basis for the production of secondary evidence under Section 35 of the Evidence Act.
Ratio Decidendi
The court found that the plaintiff had provided a reasonable explanation for the absence of the original agreement, namely that it was lost while travelling. The court also noted that the defendants had not previously objected to the use of copies of the agreement in the proceedings and had not challenged the existence of the agreement itself. Given these circumstances, and to avoid unnecessary delay, the court exercised its discretion to admit the copy of the agreement as secondary evidence under the relevant provisions of the Evidence Act.
Court Disposition
Application to admit copy of agreement as evidence allowed.
Orders
- A copy of the agreement dated 2/4/2003 is admitted as evidence and marked as Plaintiff's Exhibit 1.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 17 OF 2014
RICHARD TOROITICH…………........................................PLAINTIFF
VERSUS
MIKE K. LELMET
ELISHEBA C. LELMET ..................................................DEFENDANTS
PAULINE J. LELMET
ESTHER J. LELMET (suing as administrators of the estate of
WILLIAM CHERUIYOT LELMET)
R U L I N G (1)
1. The copy of the agreement dated 2/4/2003 is objected to as obviously it is not an original. It is the rule that primary evidence must, except in certain specified exception in Section 35 of Cap 80, be relied on in proceedings. I find that one of the exceptions is where the production of secondary evidence has been sought after a basis has been paid for its intended production. In those circumstances the court may depending on the circumstances of the case admit a copy of such evidence. The plaintiff began by explaining that the file containing the original agreement was lost while he was travelling from Mombasa where he works, and he has not been able to trace that file. There is also the averment that the copies of the same document have been relied on in these proceedings before this hearing without any demur on the part of the defendants.
2. It is the opinion of this court that much time would be spent trying to locate the said document for its production in court. I find that it is a replica of what was filed alongside the plaint on 31/1/2014. Looking at the statement of Mike Kiptoo Lelmet filed in this case, on 24/4/2014 I find there to be no challenge to the existence of the said agreement; what there is is the allegation that consideration failed in respect of the agreement.
3. I therefore exercise my discretion and admit a copy of the said agreement as evidence in this case to be marked as P.Exihibit 1.
Dated, signed and delivered at Kitale on this 8thday of February, 2018.
MWANGI NJOROGE
JUDGE
COURT
Ruling read in open court in the presence of the parties and their counsel.
Court Assistant - Isabellah.
MWANGI NJOROGE
JUDGE
8/2/2018