ENFORCE LIMITED VS MICHAEL LINKATO OLOLABURA AND LAND REGISTRAR KILGORIS

RULING

The Agreement for Sale dated 05.12.2018 is the back born of this suit.

The 1^st, 4^th – 7^th Defendant are objecting to the production of the document on the basis that this witness is not the maker of the document and secondly that the same is a forged and/or fraudulent document.

To begin with the first issue, the witness has introduced himself as a director of the Plaintiff.

The Plaintiff is a limited liability company that does not have life of its own save through the directors.

Unless the witness is not a director of the Plaintiff, it is this Court’s view and holding that as a director has the right and authority to produce the agreement on behalf of the Plaintiff.

On the second issue of the forgery and the fraud aspect of this Agreement, this court is of the view that the issues of the legality form the foundation of this suit.

In other words, if this Agreement is to be declared fraudulent and/or forged, the court can only do so by allowing parties to prove their case.

In particular, Section 107 of the Evidence Act requires that he who alleges a fact must prove that fact.

The Plaintiff is under an obligation to prove the validity of agreement.

On the other hand the Defendants are also under an obligation to prove the forgery and fraud.

To deny this important document being placed before the court for discussion and evaluation would mean that the Defence case is actually upheld even before they have not proved the claims of fraud and forgery.

In other words, the failure to have the Agreement placed before the court would be a technical knock out to the Plaintiff without even looking at the facts of this Agreement and its validity.

In essence therefore, this court hereby admits the Agreement for Sale dated 05.12.2018 and all parties ae at liberty to challenge it during cross-examination.

IN THE PRESENCE OF:

COURT ASSISTANT:  Mr. Ngeno

PLAINTIFF:  Ms. Mwendwa h/b Marete

DEFENDANT:  Mr. Godia for 1^st Defendant

            Mr. Moranga for Interested Party 

            Mr. Ogenga h/b 3^rd Defendant

            Mr. Ndiritu for 2^nd Defendant

            Mr. Isayi for 4^th – 7^th Defendant