HASHAM LALJI PROPERTIES LIMITED AND DIAMOND HASHAM LALJI AND 1 Others VS HASSAN K. KOSKEY alias JASSAN K. KOSKEY AND THE CHIEF LAND REGISTRAR AND 2 Others

RULING

1. The objection raised by the Plaintiff counsel is based on Section 35 of the Evidence Act.
2. In her view, the witness has not produced the original documents and therefore the contents therein are not admissible unless the maker comes and produces the document.
3. The Plaintiff’s Counsel further stated that they do not know where the originals of these documents are.
4. Mr. Kopere on the other side stated that the objection was not sustainable.
5. Mr. Kopere stated that there was an inquiry known as ELDORET INQUIRY NO.7 OF 2006 which dealt with the issues of fraudulent transfer and ownership dispute between the Directors of the 1^st Plaintiff.
6. Based on this Inquiry, the DCIO undertook various investigations including the verification of the Agreement for Sale dated 27.08.2002 as well as the dispute on the directorship.
7. The DCIO then prepared its report and the said Inquiry File No.ELDORET NO.7 OF 2006 was produced as PW EX.17 on the 25.11.2011.
8. To begin with, it is clear that the supplementary list of documents that contains the letters in dispute was admitted by Justice Ombwayo on the 04.05.2017.
9. The next event was service of the supplementary list of documents including the letters on the Plaintiffs.
10. There was no dispute that the documents were served on the Plaintiff.
11. The Plaintiffs upon service of the letters were required to notify the 1^st Defendant of any objection on the same.
12. This objection would have been by way of notice to produce or an application to call the makers of the documents.
13. The second opportunity for the Plaintiffs to have objected to those documents would be at the pre-trial stage where parties are allowed to comment on the documents to be relied upon at the hearing.
14. Be as it may, Section 65 of the Evidence Act deals with documentary evidence in a trial.
15. Section 65 (1) of the Evidence Act deals with primary evidence which is the production of the original evidence itself.
16. Nevertheless, this Section also allows the production of documents not in their original state.
17. Section 65(5) of Evidence Act allows for production and admission of documents that comply with Section 65(5)(a-c).
18. Section 68 of the Evidence Act gives an opportunity of secondary evidence where an original is not available.
19. Section 65(1)(a) and (b) gives instances in which the Court can admit secondary evidence including Section 68(ii).
20. According to Mr. Kopere, the original of the Agreement for Sale and the letters in issue are in the Inquiry file No.7 of 2006 which was produced as PW EX 17.
21. The Court is of the view that if there was an issue on the Agreement for Sale and the letters being produced, the first place would be to refer to the contents in the Inquiry file produced as PW1 Ex. 17.
22. If the  original Agreement for Sale and the letters in dispute were not contained in the Inquiry file in their original nature, then the objection on the production of the original would be sustainable.
23. At the moment the objection does not verify if the original Agreement for Sale and the letters in dispute are not in the original file.
24. In the Court’s view, the witness on the stand can only have copies by virtue of the fact that the originals were taken by the DCIO in the exercise of their investigations which resulted to the recommendations made in the Inquiry file.
25. The witness has therefore, given a proper explanation as to why he can not give the original documents before the court today.
26. It is important to also point out that the production of the Inquiry file on the 25.11.2011 made public all the information, documents and outcome of the
    police Inquiry and the witness had the locus to obtain all the information in the Inquiry file to assist in asserting his ownership or prove his case against the Plaintiffs.
27. In conclusion therefore, this Court will admit the following documents as part of these proceedings;

DW1 Exhibit 15 - Letter dated 20.08.2001 from Bahadurali Hasham Lalji to 3^rd Plaintiff

DW1 Exhibit 16- Copy of a letter dated 14.08.2001 from Bahadurali Hasham Lalji to the 2^nd Plaintiff

DW1 Exhibit 17- Copy of a letter dated 23.05.2003 from Bahadurali to Board of Directors Cookies Ltd & copied to 2^nd & 3^rd Plaintiff and Sultan Lalji & Another.

DW1 Exhibit 18- Copy of a letter dated 20.05.2003 from Bhadurali to Maize Ltd and copied to 2^nd and 3^rd Plaintiff.

DW1 Exhibit 19- Copy of a letter dated 25.02.2003 from Bahadurali to the 2^nd Plaintiff and copied to 3^rd Plaintiff.

DW1 Exhibit 20- Copy of a letter dated 1.09.2001 from Sultan Lalji to the 1^st Plaintiff copied to 2^nd and 3^rd Plaintiff.

Dw1 Exhibit 21- copy of letter dated 4.09.2001 from Bahadurali to the 2^nd Plaintiff.

Dw1 Exhibit 22- Letter dated 30.08.2001 from Bahadurali to the 2^nd Plaintiff.

IN THE PRESENCE OF;

Court Ass: Brian

Plaintiff: Ms. Odwa for the Plaintiff

Defendant: Mr. Kopere for 1^st Defendant

  Mr. Kwame for 2^nd, 3^rd and 4^th  Defendant