1. At the previous hearing of this case on 21st September 2023 the Plaintiff called Karisa Iha the Director Legal Services for the City Council of Nairobi between August 2012 to 2017. The testimony of this witness touched on HCCC No. 875 of 2010 between Kyavee Holdings Limited and the City Council of Nairobi. That case is at the heart of this case.
2. When the witness attempted to produce certain documents, Julie Soweto, Learned Counsel for the 1st Defendant, strongly objected to the production of those documents by the witness on grounds that he was not the one who supplied them to the Plaintiff and no basis had been laid for not availing the officer who supplied the same. This objection found support from Learned Counsel for the 11th Defendant but not Counsel for the other Defendants.
3. There is no dispute that the witness (PW7) was at all times material to this case an officer of the City Council of Nairobi. It is also not in dispute that he became seized of this matter by virtue of having taken over office from the previous Director of Legal Services in whose tenure the matter in issue had arisen. It is also not disputed that he became familiar with the case in issue in the course of his work. It is not therefore in doubt that when need arose for the Plaintiff Commission to seek documents touching on the matters in issue in this case the duty fell on him by virtue of that office to supply the same. Indeed, he recorded a statement in regard to this case and the statement was served upon Counsel for the Respondents.
4. The documents PW7 sought to produce were a letter from the Ethics & Anti-Corruption Commission, an Internal Memo from the Director Legal Affairs to the City Treasurer dated 2nd June, 2011 (page 51 of the Plaintiff’s bundle of documents), a payment voucher to Wachira Mwangi Mburu & Co. Advocates (page 52 of the Plaintiff’s bundle of documents), a payment certificate issued by the City Council of Nairobi (page 53 of the Plaintiff’s bundle of documents), a fee note allegedly issued by Wachira Mwangi Mburu & Co. Advocates which runs from pages 46 to 48 of the bundle and a memo to the county secretary of the Nairobi City County to the Chief Officer Finance & Economic Planning Director Affairs (at page 462) of the bundle.
5. The aforestated documents are all public documents as defined in Section 79 (1)(a) (ii) and (b) of the Evidence Act. PW7 is a public officer as defined in Section 2 of the Act. the documents are admissible in evidence under Section 35 of the Evidence Act as they are evidence as to facts in issue. Indeed, their admissibility is not contested. What is in contention is their production by PW7 as he is not their author. Section 25(1) (b) of the Evidence Act requires that the same be proved by production of the original and by the maker unless he is dead or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of deal or expense which in the circumstances of the case appears to the court unreasonable. If this court was to consider Section 35(1) of the Act, then the documents cannot be produced by PW7.
6. However, Parliament in its wisdom understood and acknowledged that in certain circumstances it would be reasonable to required production of the original documents and to insist upon production by the makers thereof. For that reason, Parliament enacted Section 35(2) which gives this court discretion to, upon considering the circumstances of the case admit the documents notwithstanding that the original is not produced and that the maker though available is not called as a witness. Section 35(2) states:-
“35(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) shall be admissible or may, without any such order having been made, admit such a statement in evidence–
(a) notwithstanding that the maker of the statement is available but is not called as a witness;
(b) notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or the court may approve, as the case may be.”
7. The office to which the Plaintiff’s letter requesting for documents was sent is an office with perpetual succession meaning it does not end with the previous holder. PW7 was a public officer as defined in Section 2 of the Evidence Act and it is not disputed that he was at the time the holder of the Office of Director Legal Services which office was the custodian of such documents as were requested by the Plaintiff. I therefore find that he is competent to produce the documents and I do so order.
Orders accordingly.
Signed, dated and delivered in open court this
4th day of December 2023.
E N MAINA
JUDGE