RULING ON ADMISSIBILITY OF THE AUDIT REPORT BY PWC
1. This matter came up for further defence hearing today, during which the second defence witness (DW2) took the stand. In the course of cross-examination by the plaintiff, Learned Counsel Mr. Kangata, who is acting in person, Senior Counsel Mr. Oraro raised an objection to a reference made to an audit report conducted by PricewaterhouseCoopers (PwC) concerning the Capital Markets Authority (CMA).
2. Senior Counsel contended that the said report was inadmissible as it had not been produced by its maker, as required under the Evidence Act. In response, Mr. Kangata submitted that he had produced the report following the failure by CMA to comply with a Notice to Produce, and that no objection had been raised by the defendants at the time the report was introduced.
3. I have carefully perused the court record. It is apparent that the matter was initially listed for hearing on 28th January 2021 before Ngenye J., but the trial commenced de novo on 8th December 2021 before Mshila J. On the latter date, Senior Counsel Oraro and Mr. Rabut appeared for CMA, while Mr. Kangata appeared in person.
4. Mr. Kangata adopted his witness statement dated 15th May 2018 as his evidence-in-chief and proceeded to produce two (2) bundles of documents dated 24th November 2018, which included the audit report now under challenge. No objection was raised at that point by counsel for the CMA.
5. Moreover, the record shows that Senior Counsel Oraro proceeded to cross-examine Mr. Kangata on the contents of the said audit report. Further, on 14th February 2025, before this Court, Mr. Kangata again referred to the same report during his cross-examination of DW1. These are but a few of the several occasions on which the PwC audit report has been referred to in these proceedings; none of which attracted any objection until today, when a question was posed to DW2 on the same report.
6. While I appreciate Senior Counsel’s argument that, as a general rule, documentary evidence should be produced by its maker pursuant to Section 35 of the Evidence Act, there are notable exceptions set out in the proviso to Section 35(1) as well as under Section 35(2).
7. This case has been in trial since 2021, and the document in question has been admitted without objection and referred to on multiple occasions. To now challenge its admissibility mid-way through the hearing would occasion undue delay and prejudice the fair and expeditious disposal of the matter. In any event, the defendants will not suffer prejudice as they retain the opportunity to re-examine witnesses on the document during re-examination.
8. Having considered the circumstances, I am satisfied that the PwC audit report falls within the exceptions contemplated under Section 35(1) of the Evidence Act. In the broader interests of substantive justice, the objection is without merit and is accordingly overruled.
It is so ordered.
1. This matter came up for further defence hearing today, during which the second defence witness (DW2) took the stand. In the course of cross-examination by the plaintiff, Learned Counsel Mr. Kangata, who is acting in person, Senior Counsel Mr. Oraro raised an objection to a reference made to an audit report conducted by PricewaterhouseCoopers (PwC) concerning the Capital Markets Authority (CMA).
2. Senior Counsel contended that the said report was inadmissible as it had not been produced by its maker, as required under the Evidence Act. In response, Mr. Kangata submitted that he had produced the report following the failure by CMA to comply with a Notice to Produce, and that no objection had been raised by the defendants at the time the report was introduced.
3. I have carefully perused the court record. It is apparent that the matter was initially listed for hearing on 28th January 2021 before Ngenye J., but the trial commenced de novo on 8th December 2021 before Mshila J. On the latter date, Senior Counsel Oraro and Mr. Rabut appeared for CMA, while Mr. Kangata appeared in person.
4. Mr. Kangata adopted his witness statement dated 15th May 2018 as his evidence-in-chief and proceeded to produce two (2) bundles of documents dated 24th November 2018, which included the audit report now under challenge. No objection was raised at that point by counsel for the CMA.
5. Moreover, the record shows that Senior Counsel Oraro proceeded to cross-examine Mr. Kangata on the contents of the said audit report. Further, on 14th February 2025, before this Court, Mr. Kangata again referred to the same report during his cross-examination of DW1. These are but a few of the several occasions on which the PwC audit report has been referred to in these proceedings; none of which attracted any objection until today, when a question was posed to DW2 on the same report.
6. While I appreciate Senior Counsel’s argument that, as a general rule, documentary evidence should be produced by its maker pursuant to Section 35 of the Evidence Act, there are notable exceptions set out in the proviso to Section 35(1) as well as under Section 35(2).
7. This case has been in trial since 2021, and the document in question has been admitted without objection and referred to on multiple occasions. To now challenge its admissibility mid-way through the hearing would occasion undue delay and prejudice the fair and expeditious disposal of the matter. In any event, the defendants will not suffer prejudice as they retain the opportunity to re-examine witnesses on the document during re-examination.
8. Having considered the circumstances, I am satisfied that the PwC audit report falls within the exceptions contemplated under Section 35(1) of the Evidence Act. In the broader interests of substantive justice, the objection is without merit and is accordingly overruled.
It is so ordered.