[2012] KEHC 2088 (KLR)

[2012] KEHC 2088 (KLR)

The court held that the Plaintiff, not being the maker of the sale agreement dated 14th November 2000, could not produce it as evidence. Section 35(1) of the Evidence Act requires that the maker of a document must be called as a witness unless their attendance cannot be procured without unreasonable delay or...

Source-derived case information.

Citation
[2012] KEHC 2088 (KLR)
Parties
Plaintiff: Stephen Kilonzo; Defendant: Hellen Wangari; Defendant: Maculate Ngina (sued as administratix of the estate of the late Obed Mwangangi)
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
20 September 2012
Case Number
Civil Suit 791 of 2009
Procedural Posture
Civil Suit / Ruling on Admissibility of Documentary Evidence
Outcome
Witness summons to issue for the maker of the document; suit to be fixed for hearing on a priority basis.
Judges
C.N Mutava
Legal Topics
Admissibility of Evidence, Documentary Evidence, Sale Agreements, Capacity to Produce Documents
Source Language
english
Civil Procedure Land and Property Admissibility of Evidence Documentary Evidence Sale Agreements Capacity to Produce Documents

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Summary, issues, holding and outcome

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Parties

Stephen Kilonzo

Plaintiff

Hellen Wangari

Defendant

Maculate Ngina (sued as administratix of the estate of the late Obed Mwangangi)

Defendant

Procedural Posture

Civil Suit / Ruling on Admissibility of Documentary Evidence

Legal Issues

  1. 1 Whether the plaintiff, not being the maker of the sale agreement, can produce it as evidence.
  2. 2 Whether the advocate who prepared the agreement was duly authorized to practice law at the material time.
  3. 3 Whether the signature of the deceased party on the agreement was forged.

Ratio Decidendi

The court held that the Plaintiff, not being the maker of the sale agreement dated 14th November 2000, could not produce it as evidence. Section 35(1) of the Evidence Act requires that the maker of a document must be called as a witness unless their attendance cannot be procured without unreasonable delay or expense, which was not demonstrated in this case. Furthermore, concerns regarding the advocate's authority to practice and the authenticity of the deceased's signature are fundamental to the validity of the document and are best addressed by the advocate who prepared the agreement. The court therefore directed that a witness summons be issued to Mr. Jacob Mutula, the maker of the...

Court Disposition

Witness summons to issue for the maker of the document; suit to be fixed for hearing on a priority basis.

Orders

  • Witness summons to issue against Mr. Jacob Mutula to appear and produce the sale agreement and for cross-examination.
  • Parties to fix the suit for hearing on a priority basis.