This is an appeal arising from the judgment of Honourable F. Munyi Senor Resident Magistrate, Nakuru delivered on 21st July, 2021 in Nakuru CMCC No. 290 of 2018.
The Appellant filed a Memorandum of Appeal dated 13th August, 2021 appealing against the said judgment on the following grounds: -
1. THAT the learned Magistrate erred in law by admitting a copy of a letter of allotment produced during hearing as evidence.
2. THAT the learned Magistrate erred in fact by admitting a copy of the letter of allotment despite it being within her knowledge that it was not certified as a true copy of the original.
3. THAT the learned Magistrate erred in law by failing to take into cognizance that documents must be proved by way of primary evidence and secondary evidence is only admissible in specified permissible instances.
4. THAT the learned Magistrate erred in law by failing to take into account the established principles on the admission of evidence as espoused in the Evidence Act Chapter 80 Laws of Kenya.
The Appellant seeks orders allowing the appeal and that the decision of the trial Magistrate where she admitted a copy of an allotment letter as evidence be quashed.
BRIEF FACTS
The Appellant filed a suit against the Respondent vide a plaint dated 30th October, 2018 seeking a declaration that she is the lawful allotee of the parcel of land known as PLOT NO 2038 KIAMBOGO SETTLEMENT SCHEME and a permanent injunction against the Respondent and her agents.
On 21st July, 2021 the Appellant’s case was heard to completion and when the Respondent was in the process of giving her testimony, when the Appellant’s advocate objected to the production of the allotment letter dated 27th April, 1984 (DMFI 1). The trial court directed that the said allotment letter be admitted under Section 68 of the Evidence Act. She also directed that the settlement officer would appear and give the correct status of the letter.
It is on this basis that the Appellant being dissatisfied with the trial court’s direction on the admission of the allotment letter as evidence lodged the instant appeal before this court.
This court on 2nd May, 2024 directed that the parties file their written submissions to the appeal.
Submissions
Counsel for the Appellant filed his submissions dated 5th July, 2024 where he relied on Section 66 of the Evidence Act and submitted that the trial magistrate erred in having directed the production of the copy of allotment letter yet it had not been certified. He further submitted that the settlement officer ought to have been the one to produce the letter upon proving that the original was in his possession. Counsel argued that the Respondent’s counsel had the allotment letter marked for identification but the trial court erroneously had it produced as evidence. He submitted that since both parties had consented to the settlement officer attend court as an expert witness, the trial magistrate ought to have been allowed to produce the allotment letter after proving its authenticity. He also argued that the trial magistrate granted prayers that had not been sought by admitting the said document as evidence yet the Respondent had prayed that the same be marked for identification.
Counsel relied on Sections 68 (2) (c) and 80 of the Evidence Act and submitted that the uncertified allotment letter did not satisfy the said provisions. He further cited the case of Muhotetu Farmers Company Ltd V John Maina Nderitu & Another [2020] eKLR where the court declined to have un-certified copies of public documents produced as evidence.
Counsel for the Respondent filed his submissions dated 15th July, 2024 where he identified two issues for determination. First issue was whether the Respondent’s copy of allotment letter dated 27th April, 1984 was admissible in evidence having emanated from a public institution. Counsel argued that secondary evidence that emanated from a public institution was admissible in evidence as was the case of the allotment letter. He further argued that there had been no decision that rendered the letter a nullity. Counsel relied on Article 159 (2) (d) of the Constitution and submitted that justice ought to be administered without undue regard to procedural technicalities. He urged the court to uphold the trial magistrate’s decision that admitted the Respondent’s Allotment letter produced as Defence Exhibit 1.
The second issue for determination was whether the appeal has been overtaken by events thus unmerited. Counsel argued that the Appellant was indolent since the proceedings had been stayed since 2021 to pursue the instant appeal only until 2023 when the same proceeded in the right forum. He further argued that the Appellant had appeared to have abandoned the present appeal when she lifted the stay in the trial court and caused the case to proceed for defence hearing where the contested allotment letter was admitted in evidence. Counsel submitted that the matter was heard save for the settlement officer who is to appear to clarify on the authenticity of the allotment letter. He argued that the subject of the present appeal is already extinguished and urged the court to dismiss the appeal.
Analysis and Determination
Upon consideration of the materials presented in respect to the Appeal herein including the Memorandum of Appeal and Record of Appeal, the following issues for determination:
1. Whether the Appeal is merited
2. Who should bear the cost of the appeal.
Being a first appeal, the court relies on a number of principles as set out in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123:
“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...”
Further as was held in the case of Mwangi v Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence.
It is clear that the present appeal is based on admissibility of evidence which is provided for under the Evidence Act. The production of secondary evidence is elaborated under Section 66 to include certified copies, copies of the original, counterparts of documents and oral accounts of documents provided they meet the criteria set out under Section 68. The said section further provides for exception to production of primary evidence as follows:
i. where the original document is in possession of the adverse party or a person out of the reach of the court or any person legally bound to produce it
ii. where the contents are admitted in writing by the adverse party
iii. where the original is lost or destroyed or cannot be produced within reasonable time
iv. the original is not easily moveable
v. the original is a public document
vi. the original is a certified copy and;
vii. where the original consists of numerous accounts of other documents if the condition set out therein have been met.
Section 80 of the Evidence Act provides that:
“(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(2) Any officer who by the ordinary course of official duty is authorized to deliver copies of public documents shall be deemed to have the custody of such documents within the meaning of this section.”
Section 81 of the Act further provides that:
“Certified copies of public documents may be produced in proof of the contents of the documents or parts of the documents of which they purport to be copies.”
In the instant case, the document in contention is the allotment letter dated 27th April, 1984 where the trial magistrate admitted the said document as Defence Exhibit 1 after invoking the provisions of Section 68 of the Evidence Act. It was the Respondent’s case that the original could not be found and that the Respondent was issued as it was. This court has perused the said document and it is not dispute that the allotment letter was not certified. I have further perused the trial court proceedings and it is clear that the trial magistrate noted that the settlement officer was to appear to give the correct status of the letter. Ordinarily, the originals ought to be availed in court but in the absence of the same, certified copes which meet the conditions set out by the Evidence Act for the production of certified copies specifically Section 68. In light of the above, it is this court’s view that the allotment letter did not meet the criteria under Section 68 of the said Act. It is therefore this court’s finding that the trial magistrate erred in having the letter admitted as evidence.
In addition, it is not in contention that the Respondent’s advocate submitted during trial that the document be marked for identification as evidenced under page 6 of the trial court proceedings. This court has also considered the rival arguments by the Respondent and I find that they have not demonstrated what prejudice they would suffer if allotment letter was not admitted into evidence. Besides, it is a fact that trial was never concluded and the settlement officer is yet to tender his evidence on the allotment letter. I find that the settlement officer will have the chance to produce the allotment letter during evidence.
The upshot of the foregoing is that the appeal is merited and is allowed with costs to the Appellant. It is so ordered.
JUDGMENT DATED, SIGNED AND DELIVERED ELECTRONICALLY THIS 16TH DAY OF OCTOBER 2024.
The Appellant filed a Memorandum of Appeal dated 13th August, 2021 appealing against the said judgment on the following grounds: -
1. THAT the learned Magistrate erred in law by admitting a copy of a letter of allotment produced during hearing as evidence.
2. THAT the learned Magistrate erred in fact by admitting a copy of the letter of allotment despite it being within her knowledge that it was not certified as a true copy of the original.
3. THAT the learned Magistrate erred in law by failing to take into cognizance that documents must be proved by way of primary evidence and secondary evidence is only admissible in specified permissible instances.
4. THAT the learned Magistrate erred in law by failing to take into account the established principles on the admission of evidence as espoused in the Evidence Act Chapter 80 Laws of Kenya.
The Appellant seeks orders allowing the appeal and that the decision of the trial Magistrate where she admitted a copy of an allotment letter as evidence be quashed.
BRIEF FACTS
The Appellant filed a suit against the Respondent vide a plaint dated 30th October, 2018 seeking a declaration that she is the lawful allotee of the parcel of land known as PLOT NO 2038 KIAMBOGO SETTLEMENT SCHEME and a permanent injunction against the Respondent and her agents.
On 21st July, 2021 the Appellant’s case was heard to completion and when the Respondent was in the process of giving her testimony, when the Appellant’s advocate objected to the production of the allotment letter dated 27th April, 1984 (DMFI 1). The trial court directed that the said allotment letter be admitted under Section 68 of the Evidence Act. She also directed that the settlement officer would appear and give the correct status of the letter.
It is on this basis that the Appellant being dissatisfied with the trial court’s direction on the admission of the allotment letter as evidence lodged the instant appeal before this court.
This court on 2nd May, 2024 directed that the parties file their written submissions to the appeal.
Submissions
Counsel for the Appellant filed his submissions dated 5th July, 2024 where he relied on Section 66 of the Evidence Act and submitted that the trial magistrate erred in having directed the production of the copy of allotment letter yet it had not been certified. He further submitted that the settlement officer ought to have been the one to produce the letter upon proving that the original was in his possession. Counsel argued that the Respondent’s counsel had the allotment letter marked for identification but the trial court erroneously had it produced as evidence. He submitted that since both parties had consented to the settlement officer attend court as an expert witness, the trial magistrate ought to have been allowed to produce the allotment letter after proving its authenticity. He also argued that the trial magistrate granted prayers that had not been sought by admitting the said document as evidence yet the Respondent had prayed that the same be marked for identification.
Counsel relied on Sections 68 (2) (c) and 80 of the Evidence Act and submitted that the uncertified allotment letter did not satisfy the said provisions. He further cited the case of Muhotetu Farmers Company Ltd V John Maina Nderitu & Another [2020] eKLR where the court declined to have un-certified copies of public documents produced as evidence.
Counsel for the Respondent filed his submissions dated 15th July, 2024 where he identified two issues for determination. First issue was whether the Respondent’s copy of allotment letter dated 27th April, 1984 was admissible in evidence having emanated from a public institution. Counsel argued that secondary evidence that emanated from a public institution was admissible in evidence as was the case of the allotment letter. He further argued that there had been no decision that rendered the letter a nullity. Counsel relied on Article 159 (2) (d) of the Constitution and submitted that justice ought to be administered without undue regard to procedural technicalities. He urged the court to uphold the trial magistrate’s decision that admitted the Respondent’s Allotment letter produced as Defence Exhibit 1.
The second issue for determination was whether the appeal has been overtaken by events thus unmerited. Counsel argued that the Appellant was indolent since the proceedings had been stayed since 2021 to pursue the instant appeal only until 2023 when the same proceeded in the right forum. He further argued that the Appellant had appeared to have abandoned the present appeal when she lifted the stay in the trial court and caused the case to proceed for defence hearing where the contested allotment letter was admitted in evidence. Counsel submitted that the matter was heard save for the settlement officer who is to appear to clarify on the authenticity of the allotment letter. He argued that the subject of the present appeal is already extinguished and urged the court to dismiss the appeal.
Analysis and Determination
Upon consideration of the materials presented in respect to the Appeal herein including the Memorandum of Appeal and Record of Appeal, the following issues for determination:
1. Whether the Appeal is merited
2. Who should bear the cost of the appeal.
Being a first appeal, the court relies on a number of principles as set out in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123:
“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...”
Further as was held in the case of Mwangi v Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence.
It is clear that the present appeal is based on admissibility of evidence which is provided for under the Evidence Act. The production of secondary evidence is elaborated under Section 66 to include certified copies, copies of the original, counterparts of documents and oral accounts of documents provided they meet the criteria set out under Section 68. The said section further provides for exception to production of primary evidence as follows:
i. where the original document is in possession of the adverse party or a person out of the reach of the court or any person legally bound to produce it
ii. where the contents are admitted in writing by the adverse party
iii. where the original is lost or destroyed or cannot be produced within reasonable time
iv. the original is not easily moveable
v. the original is a public document
vi. the original is a certified copy and;
vii. where the original consists of numerous accounts of other documents if the condition set out therein have been met.
Section 80 of the Evidence Act provides that:
“(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(2) Any officer who by the ordinary course of official duty is authorized to deliver copies of public documents shall be deemed to have the custody of such documents within the meaning of this section.”
Section 81 of the Act further provides that:
“Certified copies of public documents may be produced in proof of the contents of the documents or parts of the documents of which they purport to be copies.”
In the instant case, the document in contention is the allotment letter dated 27th April, 1984 where the trial magistrate admitted the said document as Defence Exhibit 1 after invoking the provisions of Section 68 of the Evidence Act. It was the Respondent’s case that the original could not be found and that the Respondent was issued as it was. This court has perused the said document and it is not dispute that the allotment letter was not certified. I have further perused the trial court proceedings and it is clear that the trial magistrate noted that the settlement officer was to appear to give the correct status of the letter. Ordinarily, the originals ought to be availed in court but in the absence of the same, certified copes which meet the conditions set out by the Evidence Act for the production of certified copies specifically Section 68. In light of the above, it is this court’s view that the allotment letter did not meet the criteria under Section 68 of the said Act. It is therefore this court’s finding that the trial magistrate erred in having the letter admitted as evidence.
In addition, it is not in contention that the Respondent’s advocate submitted during trial that the document be marked for identification as evidenced under page 6 of the trial court proceedings. This court has also considered the rival arguments by the Respondent and I find that they have not demonstrated what prejudice they would suffer if allotment letter was not admitted into evidence. Besides, it is a fact that trial was never concluded and the settlement officer is yet to tender his evidence on the allotment letter. I find that the settlement officer will have the chance to produce the allotment letter during evidence.
The upshot of the foregoing is that the appeal is merited and is allowed with costs to the Appellant. It is so ordered.
JUDGMENT DATED, SIGNED AND DELIVERED ELECTRONICALLY THIS 16TH DAY OF OCTOBER 2024.