[2018] KEELC 3712 (KLR)
The court held that the statement of the deceased witness, who was a land broker involved in the transaction and recorded the statement in the ordinary course of business, is admissible under Section 33(b) of the Evidence Act. The court found that the statement was corroborated by the property owner and that the...
Source-derived case information.
- Citation
- [2018] KEELC 3712 (KLR)
- Parties
- Plaintiff: Yasmin Anwar Yusuf; Defendant: Samuel Gatugi Kimani; Defendant: Unnamed 2nd Defendant; Defendant: Unnamed 3rd Defendant
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 350 of 2014
- Procedural Posture
- Land and Property / Ruling on Admissibility of Deceased Witness Statement
- Outcome
- Application to admit deceased witness statement allowed.
- Legal Topics
- Admissibility of Evidence, Deceased Witness Statement, Section 33 Evidence Act, Land Sale Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yasmin Anwar Yusuf
Plaintiff
Samuel Gatugi Kimani
Defendant
Unnamed 2nd Defendant
Defendant
Unnamed 3rd Defendant
Defendant
Procedural Posture
Land and Property / Ruling on Admissibility of Deceased Witness Statement
Legal Issues
- 1 Whether the statement of a deceased witness can be admitted in evidence under Section 33(b) of the Evidence Act.
- 2 Whether the admission of the deceased's statement would be prejudicial to the defendants due to lack of cross-examination opportunity.
Ratio Decidendi
The court held that the statement of the deceased witness, who was a land broker involved in the transaction and recorded the statement in the ordinary course of business, is admissible under Section 33(b) of the Evidence Act. The court found that the statement was corroborated by the property owner and that the requirements for admissibility under the statute were met. The objection regarding prejudice due to lack of cross-examination was not sufficient to override the statutory provision allowing such evidence. Accordingly, the statement was admitted as part of the plaintiff's evidence.
Court Disposition
Application to admit deceased witness statement allowed.
Orders
- The statement of the deceased witness is admitted as part of the plaintiff's evidence.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MILIMANI
ELC NO. 350 OF 2014
YASMIN ANWAR YUSUF........................................................PLAINTIFF
=VERSUS=
SAMUEL GATUGI KIMANI & 2 OTHERS.......................DEFENDANT
RULING
1. On 15th March 2018, when this case came up for further hearing of the Plaintiffs case, Mr Mbiga Njuguna for the Plaintiff indicated to Court that his last witness had died. He applied that the statement which had been recorded by the deceased witness be admitted in evidence under Section 33 of the Evidence Act.
2. Mr Kuria for the third defendant who was also holding brief for Mr Nyaga for the first and second defendants opposed the admission of the statement by the deceased on the ground that it will be prejudicial to his client’s case in that he will not have opportunity to cross –examine and that the best option for the plaintiff would have been substitution of the deceased witness with another witness.
3. In response, Mr Mbigi Njuguna stated that the deceased witness was a land broker who is the one who was involved in the sale property to the plaintiff and that when the plaintiff was away, the deceased acted as a caretaker of the plot on behalf of the plaintiff. The deceased statement was very short and the contents of the same are confirmed by Enid Nyambura Nyanja who sold the suit property.
4. I have considered the application by Mr Mbigi Njuguna and the opposition to the same by Mr Kuria. There is no contention that the plaintiff’s last witness died on 27th July 2017. The deceased David Kagiri Muhia recorded a statement on 30th October 2015. Section 33 (b) of the Evidence Act provides that a statement made by a deceased person in the ordinary course of business is admissible. In the instant case, the deceased recorded the statement in the ordinary course of business. The deceased was a land broker who was involved in the sale of the suit property to the plaintiff.
5. The deceased recorded the statement as a broker who had been mandated to do so by the owner of the suit property. The owner of the suit property which was sold to the plaintiff has recorded a statement which confirms what the deceased said. I therefore find that the deceased’s statement can be allowed under Section 33 (b) of the Evidence Act. The statement is accordingly admitted as part of the evidence of the plaintiff.
It is so ordered.
Dated, Signed and Delivered at Nairobithis 11thday of April 2018.
E.O .OBAGA
JUDGE
In the presence of ;-
Mr Mwaura for Mr Mbigi for Plaintiff
Court Assistant: Hilda
E.O .OBAGA
JUDGE