Lwangu v Ndote (Environment & Land Case 79 of 2010)  KEELC 2 (KLR) (10 November 2021) (Ruling)
Circumstances in which the court exempt the best evidence rule and allow for the presentation of secondary evidence.
In the course of the instant suits hearing, the plaintiffs witness (PW2) produced a photocopy of a consent. the defendant, raised an objection to the production of the consent on account of the fact that it was a photocopy and that the witness was not the maker. The instant court upheld the objection. The consent was marked as PMFI 1 (later to be changed in the record to PMF 6).
The witness then proceeded with his testimony. He sought again to produce a photocopy of another document, this time, a two-page letter dated 12/2/1982. Once more, the defendant raised an objection to the production of the letter as an exhibit. The second objection was the subject of the instant ruling.
- What was the meaning of a document/documentary evidence under evidence law?
- What was the procedure of producing documentary evidence?
- Whether rule 28 of the Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in other Courts (Legal Notice No. 5178) (Mutunga Rules) that dealt with objections to documents at the pre-trial conference if a notice thereof had been issued to a party only applied to filing of suits and not to the filing of documents that would go together with defences and counter-claims.
- Whether the marking of a document for identification dispensed with the requirement to prove a document.
- Under what circumstances would the court exempt the best evidence rule and allow for the presentation of secondary evidence?
- Under what circumstances would a court allow the presentation of documentary evidence by a person who was not the maker of the document?
Relevant provisions of the law
Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in other Courts (Legal Notice No. 5178) (Mutunga Rules)
28. In addition to the matters contained in Order 11, Rule 3 of the Civil Procedure Rules, 2010, the following are the orders/directions that may be issued by a Judge during a pre-trial conference:
(a) The issuance of appropriate Orders and directions to ensure parties comply and take pre-trial conferences seriously as they constitute a vital stage in the overall case management and the efficient administration of justice.
(b) The issuance of an Order striking out pleadings or imposing costs or similar sanctions due to non-compliance with pre-trial directions and other timelines.
(c) The issuance of Directions on the number of conferences to be held before trial.
(d) The issuance of summons for witnesses to attend court to testify and/or produce documents, and for the filing of Witness Statements in respect of such witnesses.
(e) The issuance of an Order requiring the filing of more comprehensive Witnesses Statements;
(f) The issuance of an Order that the parties agree and narrow down issues for trial.
(g) Taking of all objections to the production of specific documents, where notice has been issued to the other party ,thereafter, objections on the production of any document shall not be entertained at the main hearing;
(h) The issuance of Directions that a matter shall be determined through filed witness statement(s) and bundle of documents;
(i) Alternatively, the issuance of Directions to determine and fix the number of witnesses to testify at the trial;
(j) The issuance of an Order that the matter to be referred for arbitration or make such other orders for meditation and negotiation (as may be appropriate in the circumstances of the case) to ensure the expeditious disposal of the matter.
(k) Where appropriate, the issuance of conservatory orders or maintenance of status quo until a matter is fully and finally determined.
(l) The Judge shall have the discretion to give any further orders and/or directions as the ends of justice may require.
Law of Evidence Act, CAP 80.
35. Admissibility of documentary evidence as to facts in issue
(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say
(b) if the maker of the statement is called as a witness in the proceedings:
68. Proof of documents by secondary evidence
(1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases
(a) when the original is shown or appears to be in the possession or power of
(i) the person against whom the document is sought to be proved; or
(ii) a person out of reach of, or not subject to, the process of the court; or
(iii) any person legally bound to produce it,
and when, after the notice required by section 69 of this Act has been given, such person refuses or fails to produce it;
(b) when the existence, condition or contents of the original are proved to be admitted in writing by the person against whom it is proved, or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in a reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 79 of this Act;
(f) when the original is a document of which a certified copy is permitted by this Act or by any written law to be given in evidence;
(g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.
(2) In the cases mentioned in paragraphs (a), (c) and (d) of subsection (1),
(a) any secondary evidence of the contents of the document is admissible.
(b) In the case mentioned in paragraph (b) of subsection (1) of this section, the written admission is admissible.
(c) In the cases mentioned in paragraphs (e) and (f) of subsection (1) of this section, a certified copy of the document, but no other kind of secondary evidence, is admissible.
(d) In the case mentioned in paragraph (g) of subsection (1) of this section, evidence may be given as to the general result of the accounts or documents by any person who has examined them, and who is skilled in the examination of such accounts or documents.
- Production of documentary evidence, if sought by parties, was a crucial aspect in any trial just like oral testimony. It was governed by the Evidence Act, Chapter 80 Laws of Kenya and the procedure thereof or which was to be followed by parties beefed up by order 3 rule 2, order 7 rule 5 and order 16 rules 6 and 7 of the Civil Procedure Rules. Those provisions related to the filing of documents which should accompany the plaint, defence and counterclaim (if any) respectively and persons either or not summoned by court to produce documents and requiring persons in court to produce there and then documents in their possession. Then, the Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in other Courts (Legal Notice No. 5178) (Mutunga Rules) especially rule 28 thereof. The sub-rule gave further directions to those of order 11 and order 3 rule 2 of the Civil Procedure Rules. It dealt with objections to documents at the pre-trial conference if a notice thereof had been issued to a party.
- Rule 28 of the Mutunga Rules referred to only order 3 rule 2 of the Civil Procedure Rules. Order 3 rule 2 applied to only the filing of suits. It was titled, documents to accompany suit. It then listed the documents as an affidavit verifying the correctness of the averments in the plaint, a list of witnesses, written statements signed by the witnesses except expert witnesses, and copies of documents to be relied on at the trial. It did not apply to the filing of documents that would go together with defences and counter-claims. The relevant provision which applied to documents which accompanied the defences and counter-claims was order 7 rule 5. It was titled documents to accompany defence or counter-claim. It then listed an affidavit verifying a counterclaim where there was one, a list of witnesses, written statements signed by the witnesses except expert witnesses, and copies of documents to be relied on at the trial. Rule 28 (g) then obligated parties to notify the others of any objections to documents before the pre-trial conference. If the rule would be read holistically, it applied to both the plaintiff(s) and defendant(s) and any other parties in regard to the filing of documents to accompany their pleadings. However, since it omitted the order parties and referred to order 3 rule 2 only, it may be taken to mean that only plaintiffs were required to comply with the rule (28). That would be an anomaly. There was need to for the Rules Committee to amend the rule to include reference to all parties.
- The Evidence Act provided that documentary evidence could be either primary or secondary. Primary evidence had been defined as the document itself. Section 65 (1) provided that primary evidence meant the document itself produced for the inspection of the court.
- Technology had made it easy for hearings of matters to move from the conventional physical court sittings to virtual ones. The Covid-19 Pandemic revolutionized the manner in which, in Kenya and many other parts of the world, court sessions and filing of documents were done. Where then courts use technology to conduct hearings in which there was need to rely on documentary evidence, the procedure of producing the document itself for inspection by court could not be the only way of doing things. In some cases, the evidence may be presented electronically, by a simultaneous display to all parties via courtroom monitors, thereby ensuring that all involved were looking at the same item of evidence at the same time. Thus, even where the document was not produced physically in court for inspection, the original document should be displayed by monitors to the court for it to appreciate its state. Where it required that documents were to be filed online in court it was advisable that a colour scan thereof be used for the document/s.
- A document was anything that had an inscription thereon which the court could rely on in evidence. Here, an inscription meant a thing that was inscribed. The synonyms thereto included a writing, engraving, wording, epitaph, legend, among others. It emanated from the verb inscribe which meant to write or curve on something especially with the intent that it be a formal or permanent record.
- It could be anything produced for inspection by the court as long as it was that thing itself and it happened to have an inscription on it. Anything physical or tangible would suffice. It might include a computer, book, desk, stone, wall, tree, cloth, vehicle, sign board, any part of a human being as long as his or her part of the body had an inscription thereon, for instance, a tattoo or a writing on it for whatever purpose relevant to the evidence sought to prove a fact, or cow with an inscription onto its skin to identify the animal. The point was that that animal body contained information sought to be relied on it court. In modern times, a document included not only documents in writing, but also maps, plans, graphs, drawings, photographs, discs, tapes, videotapes, films, and negatives. A document was anything capable of being evidence.
- Section 65(1) of the Evidence Act stipulated that primary evidence was the document itself produced for inspection by the court. That was the best type of evidence. It was the best evidence rule. Therefore, a party in any proceedings should endeavour, at all times, to rely on primary evidence. But in cases where it was not possible to avail primary evidence in court, for example, where the evidence was of immovable nature then the court was permitted to admit secondary evidence.
- The document which the plaintiffs witness sought to produce was a photocopy of a letter which he alleged that he was the maker. The court did not think that the case was one that it should dispense with the requirement that the plaintiff needed to issue a notice to produce the document. The plaintiff did not issue the notice. Pursuant to section 69 of the Evidence Act, the plaintiff was still obligated to rely on primary evidence. That was not what she sought to do.
- Before a document was produced to show its contents, its existence or state/physical appearance (whichever was relevant to the proceedings before the court), it passed through three stages if it was the original or four if it was the secondary thereof that was available.
- First, the document was filed in court (according to the rules or legal requirements). If the party had not complied with the rules of filing the documents, he had to seek leave of the court to be permitted to file them out of time. The court had to be satisfied on the reasons why the party failed to comply with the rules. It was not a walk in the park for a party who failed to comply with the timelines set by law or an order of the court. Even article 159(2)(d) of the Constitution that parties often relied on did not come to the aid of all parties in all situations. Each case had to be treated on its own merits. Even so, the bar for convincing the court to exercise its discretion to permit documents to be filed out of time was higher than the usual standard.
- Second, if the document was not the original, that was to say, it was secondary evidence, the party had to show the copy to the other parties and the court first. Then he would proceed to lay the basis for the production of the copy and not the original. That had to fall within the usual standard of satisfaction of the requirements of reliance on secondary evidence.
- Third, one the court was satisfied that the party had laid a proper basis for producing secondary evidence of the document, it then permitted the party to lay further basis for production of the document. That had to be in according with the rules of relevance and admissibility in the law of evidence.
- Once, the above was complete, then the party had to prove the contents, state or physical appearance of the document.
- The party that sought to rely on a document to prove the issue in court would not succeed to do so unless the court exercised its discretion under section 69(iv) of the Evidence Act to dispense with the need for production of the document. The mere marking of a document for identification did not dispense with the formal proof thereof. When called upon to form a judicial opinion whether a document had been proved or disproved or not proved, the court would look not at the document alone but it would take into consideration all facts and evidence on record.
- He who alleged had to prove. The plaintiff ought to have followed the above steps when purporting to produce PMF 1 (PMF 6). She bore the burden to discharge the obligation. The maker of the document had to produce the document. That was provided for in section 35(1)(b) of the Evidence Act. The maker needed not be called if it was shown to the satisfaction of the court that either the maker was dead, or could not be found, or incapable of giving evidence; or his attendance could only be procured with an amount of delay or expense which in the courts view would be unreasonable in the circumstances of the case.
- The document which the plaintiffs witness (PW2) sought to produce was a photocopy of a letter dated February 14, 1982. The document was handwritten, with a number of persons having signed it at the bottom of the second page as witnesses. PW2 alleged that was the maker thereof. Besides, a close look at the letter which was touted to be an agreement of sale showed that the witness (PW2) was a mere witness, who appended his signature on it. He, however, alleged in his testimony, and PW1 in her testimony also purported that he (PW2) was maker by virtue of being the secretary who allegedly drafted the letter. There was no indication on the letter that he was the secretary. Moreover, there were no minutes of a meeting held on that date or thereabout to authenticate that fact and also point out that by such minutes he was authorized to and did write the letter.
- If the witness was to be taken as the maker of that document, nowhere did the document state so, in the face of it. Also, nowhere did the person said to be the seller, one Zebedayo Ndote, who in essence was the originator of the ideas being stated and witnessed to or proved by the witness and other people, had attested to it being so. One Mr. Zebedayo Ndote was the one who, it was shown from the face of the document, originated the document; he signed it; and it thus became difficult for the court to be convinced otherwise without further evidence in support of the witnesses testimony that he was the one who authored the document. Granted that he did, he should at the very least call for a handwriting expert to confirm that he actually was the one who authored it. He did not do this either. For those reasons, the court could not permit the witness to produce the document in evidence.
- Primary evidence was the best evidence and ought to be produced unless one came into the exceptions of the law permitting the production of secondary evidence. Section 68 of the Act was clear on the exceptions. The witness did not explain where the original letter was. If indeed he was the maker thereof, it was expected that he should have retained one of the originals of the document. In the absence of the original document therefore, the witness was duty bound to lay down the basis for the production of the copy to satisfaction of the court. He should have, if it was lost or destroyed, proved that he reported about the loss at a police station. He should have probably produced a Police Abstract to prove that and also produced the findings of the police investigation about the loss or destruction. It was not enough to produce a Police Abstract or Occurrence Book (OB) record about the report of loss or destruction. The findings of the investigation arising from the report were crucial because they would show whether or not the loss or destruction was either deliberate or accidental in which case the court could absolve the person so reporting from wilful destruction or concealment of evidence. Alternatively, he should have explained that the person who had the original, for example, if that was the case, could not avail it after due diligence to have him do so. The witness had not even demonstrated to the instant court that he had made efforts to trace the original document but his efforts yielded no fruit. All the witness did when in the dock was to attempt to produce a photocopy the document in evidence without a basis for it.
- An examination of the two photocopies showed a difference in sizes of the writings. Page two had bigger handwriting than page one. Even assuming that the handwriting was the same, there was no explanation as to why the author would write using two different sizes of hand writing. How possible would that be? That was the more reason why it needed the original to be produced so that the writings thereon could be compared. Even if it would be taken that the change of the sizes of the writings was made at the time of photocopying, there was no explanation offered by PW2 to that effect and why it would be necessary to enlarge one page and not the other. Production of an original would resolve the doubts.
- During his testimony, the witness stated that he wished to produce the document because he was the author and that he was present at the time when it was made. Were it that the witness had discharged the burden laid upon above, the court could have given him the benefit of leverage of the basis relied on as being relevant to facts in issue and admitted the document.
- It was true that PW1 was examined and cross-examined on the document dated February 14, 1982. Further perusal of the record showed that when an objection was raised at to its production, counsel for the plaintiff who conducted the matter at the time abandoned the document. Once that document was abandoned, anything the witness testified regarding it remained nothing but hearsay evidence which was inadmissible unless it passed the test of exceptions to the rule Against hearsay. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.
- It was recommended and advised that the Rules Committee amend Rule 28 of the Mutunga Rules (Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in other Courts) to include reference to or apply to all parties, in the instant case the defendants and any other parties who could be enjoined in a suit before the re-trial directions were taken.
- The instant case was a case where the best evidence rule had to be applied. The witness, PW2, had failed to satisfy the conditions for the production of secondary evidence as set out in section 68 of the Evidence Act and had not brought himself within the circumstances set out in sections 69 and 70 of the Act. He had failed to satisfy the provisions of sections 48(1) and 50(1) of the Act.