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Case Type: Succession Cause


In Re Maina Kariuki- (Deceased) [2016] eKLR

Case Number: Succession Cause 2923 of 2004 Date Delivered: 26 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In Re Maina Kariuki- (Deceased)

Citation: In Re Maina Kariuki- (Deceased) [2016] eKLR

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Mary Nyaguthii V Kennedy Kagunda & 3 Others [2016] eKLR

Case Number: Succession Cause 563 of 2008 Date Delivered: 26 Feb 2016

Judge: Jairus Ngaah

Court: High Court at Nyeri

Parties: Mary Nyaguthii v Kennedy Kagunda, Eunice Njeri Mahianyu, Grace Thuguri Macharia & Annah Wamaitha Njoroge

Citation: Mary Nyaguthii V Kennedy Kagunda & 3 Others [2016] eKLR

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Monica Adhiambo V Maurice Odero Koko [2016] eKLR

Case Number: Succession Cause 13 of 2004 Date Delivered: 26 Feb 2016

Judge: Nagillah Chrispin Beda

Court: High Court at Nyamira

Parties: Monica Adhiambo v Maurice Odero Koko

Citation: Monica Adhiambo V Maurice Odero Koko [2016] eKLR

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In Re Estate Of M K K - (Deceased) [2016] eKLR

Case Number: Succession Cause 2413 of 2011 Date Delivered: 26 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate of M K K - (Deceased)

Citation: In Re Estate Of M K K - (Deceased) [2016] eKLR

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David Khayimba V Agneta Ingosi Shiliwa & Another [2016] eKLR

Case Number: Succession Cause 95 of 2003 Date Delivered: 25 Feb 2016

Judge: Enock Chacha Mwita

Court: High Court at Kakamega

Parties: David Khayimba v Agneta Ingosi Shiliwa & Ibrahim Mitalo Shilehwa

Citation: David Khayimba V Agneta Ingosi Shiliwa & Another [2016] eKLR

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Godwin Jumba Shisanya & Another V Francis Joash Shionda [2016] eKLR

Case Number: Succession Cause 757 of 2010 Date Delivered: 25 Feb 2016

Judge: Ruth Nekoye Sitati

Court: High Court at Kakamega

Parties: Godwin Jumba Shisanya & Linus Mukalo Shisanya v Francis Joash Shionda

Citation: Godwin Jumba Shisanya & Another V Francis Joash Shionda [2016] eKLR

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In Re The Estate Of Omusugu Obara Anyanga (Deceased) [2016] eKLR

Case Number: Succession Cause 184 of 2009 Date Delivered: 24 Feb 2016

Judge: Francis Tuiyott

Court: High Court at Busia

Parties: In re the estate of Omusugu Obara Anyanga (Deceased)

Citation: In Re The Estate Of Omusugu Obara Anyanga (Deceased) [2016] eKLR

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George Okwara Omusa & Another V Peter Mukwana [2016] KLR

Case Number: Succession Cause 89 of 2014 Date Delivered: 24 Feb 2016

Judge: Francis Tuiyott

Court: High Court at Busia

Parties: George Okwara Omusa & Joy Shiundu Wesonga v Peter Mukwana

Citation: George Okwara Omusa & Another V Peter Mukwana [2016] KLR

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Peter Ndiritu Kibui V Ann Mugure Kibui [2016] eKLR

Case Number: Succession Cause 504 of 2008 Date Delivered: 24 Feb 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Peter Ndiritu Kibui v Ann Mugure Kibui

Citation: Peter Ndiritu Kibui V Ann Mugure Kibui [2016] eKLR

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In Re Estate Of John Kinoro Kanai (Deceased) [2016] eKLR

Case Number: Succession Cause 2188 of 2013 Date Delivered: 24 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: In re Estate of John Kinoro Kanai (Deceased)

Citation: In Re Estate Of John Kinoro Kanai (Deceased) [2016] eKLR

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Kithikii Kinga V Musya Kinga & 2 Others [2016] eKLR

Case Number: Succession Cause 232 of 2015 Date Delivered: 24 Feb 2016

Judge: Lilian Nabwire Mutende

Court: High Court at Kitui

Parties: Kithikii Kinga v Musya Kinga, Robert Musinga Muthui & Peter Katutu Muthui

Citation: Kithikii Kinga V Musya Kinga & 2 Others [2016] eKLR

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In Re Estate Of Noor Aden Daar (Deceased) [2016] eKLR

Case Number: Succession Cause 23 of 201 Date Delivered: 23 Feb 2016

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: In re Estate of Noor Aden Daar (Deceased)

Citation: In Re Estate Of Noor Aden Daar (Deceased) [2016] eKLR

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In Re The Matter Of The Estate Of Michael Kimando Mwangi (Deceased) [2016] eKLR

Case Number: Succession Cause 550 of 2015 Date Delivered: 23 Feb 2016

Judge: Anthony Ndung'u Kimani

Court: High Court at Nakuru

Parties: In re The Matter Of The Estate Of Michael Kimando Mwangi (Deceased)

Citation: In Re The Matter Of The Estate Of Michael Kimando Mwangi (Deceased) [2016] eKLR

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Florence Kaswii Thomas & Another V Charles Munyao Kithome [2016] eKLR

Case Number: Succession Cause 936 of 2011 Date Delivered: 23 Feb 2016

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: Florence Kaswii Thomas & Julius Wambua Kithome v Charles Munyao Kithome

Citation: Florence Kaswii Thomas & Another V Charles Munyao Kithome [2016] eKLR

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In Re Estate Of Ramadhan Abdalla (Deceased) [2016] eKLR

Case Number: Succession Cause 27 of 2015 Date Delivered: 23 Feb 2016

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: In re Estate of Ramadhan Abdalla (Deceased)

Citation: In Re Estate Of Ramadhan Abdalla (Deceased) [2016] eKLR

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Mutio Kamota Mbila & Another V Mutie Mutua [2016] eKLR

Case Number: Succession Cause 1120 of 2012 Date Delivered: 23 Feb 2016

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: Mutio Kamota Mbila & Muia Kamota v Mutie Mutua

Citation: Mutio Kamota Mbila & Another V Mutie Mutua [2016] eKLR

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In The Matter Of The Estate Of Hassan Omar Farah (Deceased) [2016] eKLR

Case Number: Succession Cause 9 of 2014 Date Delivered: 23 Feb 2016

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: In the Matter of the Estate of Hassan Omar Farah (Deceased)

Citation: In The Matter Of The Estate Of Hassan Omar Farah (Deceased) [2016] eKLR

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In Re Estate Of Hassan Omar Farah (Deceased) [2016] eKLR

Case Number: Succession Cause 9 of 2014 Date Delivered: 23 Feb 2016

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: In re Estate of Hassan Omar Farah (Deceased)

Citation: In Re Estate Of Hassan Omar Farah (Deceased) [2016] eKLR

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M K M & 3 Others V B N M[2016] eKLR

Case Number: Succession Cause 1445 of 2002 Date Delivered: 23 Feb 2016

Judge: Aggrey Otsyula Muchelule

Court: High Court at Nairobi (Milimani Law Courts)

Parties: M K M, J N M, E W & I N M v B N M

Citation: M K M & 3 Others V B N M[2016] eKLR

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John Nzunza Mbalu & Another V Alice Nzisa Mbalu [2016] eKLR

Case Number: Succession Cause 767 of 2007 Date Delivered: 22 Feb 2016

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: John Nzunza Mbalu & David Ndambo Mbalu v Alice Nzisa Mbalu

Citation: John Nzunza Mbalu & Another V Alice Nzisa Mbalu [2016] eKLR

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G.A.A.M & Another V M. O. A. O [2016] eKLR

Case Number: Succession Cause 288 of 2011 Date Delivered: 22 Feb 2016

Judge: Enock Chacha Mwita

Court: High Court at Kakamega

Parties: G.A.A.M. & M.M.A v M. O. A. O

Citation: G.A.A.M & Another V M. O. A. O [2016] eKLR

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Lawrence S. Muruthi Gachoya V Milka Wothaya Gitahi [2016] eKLR

Case Number: Succession Cause 6 of 1993 Date Delivered: 22 Feb 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Lawrence S. Muruthi Gachoya v Milka Wothaya Gitahi

Citation: Lawrence S. Muruthi Gachoya V Milka Wothaya Gitahi [2016] eKLR

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Christopher Mwangi Kaharu V Peter Muturi Kanyugo [2016] eKLR

Case Number: Succession Cause 575 Of 2006 Date Delivered: 22 Feb 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Christopher Mwangi Kaharu v Peter Muturi Kanyugo

Citation: Christopher Mwangi Kaharu V Peter Muturi Kanyugo [2016] eKLR

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In Re The Estate Of Odhiambo Oliech (Deceased) [2016] eKLR

Case Number: Succession Cause 583 of 2013 Date Delivered: 22 Feb 2016

Judge: Esther Nyambura Maina

Court: High Court at Kisumu

Parties: In Re the Estate of Odhiambo Oliech (Deceased)

Citation: In Re The Estate Of Odhiambo Oliech (Deceased) [2016] eKLR

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Teresa Wangui Ngara V Kiama Gathuri Ngara & Another [2016] eKLR

Case Number: Succession Cause 549 of 2012 Date Delivered: 19 Feb 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Teresa Wangui Ngara v Kiama Gathuri Ngara & Karoki Gathuri

Citation: Teresa Wangui Ngara V Kiama Gathuri Ngara & Another [2016] eKLR

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In The Matter Of The Estate Of Ndivo Muthike – Deceased [2016] eKLR

Case Number: Succession Cause 324 of 2011 Date Delivered: 18 Feb 2016

Judge: Edward Muthoga Muriithi

Court: High Court at Machakos

Parties: In the Matter of the Estate of Ndivo Muthike – Deceased

Citation: In The Matter Of The Estate Of Ndivo Muthike – Deceased [2016] eKLR

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Hannah Ngina & 2 Others V Francis Kamau Thairu [2016] eKLR

Case Number: Succession Cause 604 of 2006 Date Delivered: 18 Feb 2016

Judge: Anthony Ndung'u Kimani

Court: High Court at Nakuru

Parties: Hannah Ngina, Josephine Wangui Thairu & Alias Josephine Wangui Mwangi v Francis Kamau Thairu

Citation: Hannah Ngina & 2 Others V Francis Kamau Thairu [2016] eKLR

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In Re The Matter Of The Estate Of Jeremiah Muchogo Macharia Alias Nguchuga Macharia-Deceased [2016] eKLR

Case Number: Succession Cause 176 of 2011 Date Delivered: 18 Feb 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: In re In re the Matter of the estate of Jeremiah Muchogo Macharia Alias Nguchuga Macharia-Deceased

Citation: In Re The Matter Of The Estate Of Jeremiah Muchogo Macharia Alias Nguchuga Macharia-Deceased [2016] eKLR

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In Re Estate Of Njau Kanyora (Deceased) [2016] eKLR

Case Number: Succession Cause 1044 of 2010 Date Delivered: 18 Feb 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: In re Estate of Njau Kanyora (Deceased)

Citation: In Re Estate Of Njau Kanyora (Deceased) [2016] eKLR

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Mohammed Shahid Moughal V Michael Mooke Kikaye & 3 Others [2016] eKLR

Case Number: Succession Cause 680 of 2010 Date Delivered: 17 Feb 2016

Judge: Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mohammed Shahid Moughal v Michael Mooke Kikaye, Norkishi Lenana, Faith Sopilalene Kashimir & Elizabeth Naipota Mooke

Citation: Mohammed Shahid Moughal V Michael Mooke Kikaye & 3 Others [2016] eKLR

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Margaret Nyamathwe Kibera & 5 Others V Margaret Nyamathwe Kibera [2016] eKLR

Case Number: Succession Cause 366 of 2003 Date Delivered: 17 Feb 2016

Judge: Anthony Ndung'u Kimani

Court: High Court at Nakuru

Parties: Margaret Nyamathwe Kibera, Jane Wanjiru Kuria, Lucy Nyaguthie Gathuri, Violet Wambui Mbugua, Pauline Nyambura & Winnie Njeri v Margaret Nyamathwe Kibera

Citation: Margaret Nyamathwe Kibera & 5 Others V Margaret Nyamathwe Kibera [2016] eKLR

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In Re The Estate Of Njogu Muthakie (Deceased) [2016] eKLR

Case Number: Succession Cause 211 of 2015 Date Delivered: 16 Feb 2016

Judge: Bwonwong'a Justus Momanyi

Court: High Court at Embu

Parties: In Re the Estate of Njogu Muthakie (Deceased)

Citation: In Re The Estate Of Njogu Muthakie (Deceased) [2016] eKLR

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In Re Estate Of Musyoki Sila Musei (Deceased) [2016] eKLR

Case Number: Succession Cause 34 of 2011 Date Delivered: 16 Feb 2016

Judge: Pauline Nyamweya

Court: High Court at Machakos

Parties: In re Estate Of Musyoki Sila Musei (Deceased)

Citation: In Re Estate Of Musyoki Sila Musei (Deceased) [2016] eKLR

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Monicah Nyagichuhi Ngothi V John Gikaru Ngothi & Peris Wambui Ngothi [2016] ELR

Case Number: Succession Cause 1371 of 1997 Date Delivered: 16 Feb 2016

Judge: Aggrey Otsyula Muchelule

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Monicah Nyagichuhi Ngothi v John Gikaru Ngothi & Peris Wambui Ngothi

Citation: Monicah Nyagichuhi Ngothi V John Gikaru Ngothi & Peris Wambui Ngothi [2016] ELR

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Elizabeth Wairimu Thimba & Others V Wilfred Njogu Mbugua & Another [2016] eKLR

Case Number: Succession Cause 81 of 2002 Date Delivered: 16 Feb 2016

Judge: Anthony Ndung'u Kimani

Court: High Court at Nakuru

Parties: Elizabeth Wairimu Thimba & Others v Wilfred Njogu Mbugua & James Munene Thimba

Citation: Elizabeth Wairimu Thimba & Others V Wilfred Njogu Mbugua & Another [2016] eKLR

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Violet Wambui Muturi V Rebeccah Njeri Muturi [2016] eKLR

Case Number: Succession Cause 142 of 2003 Date Delivered: 15 Feb 2016

Judge: Lydia Awino Achode

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Violet Wambui Muturi v Rebeccah Njeri Muturi

Citation: Violet Wambui Muturi V Rebeccah Njeri Muturi [2016] eKLR

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M’mbui Mukindia V Nkanata Mukindia [2016] eKLR

Case Number: Succession Cause 56 of 2001 Date Delivered: 15 Feb 2016

Judge: Francis Gikonyo

Court: High Court at Meru

Parties: M’mbui Mukindia v Nkanata Mukindia

Citation: M’mbui Mukindia V Nkanata Mukindia [2016] eKLR

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Milena Bora V Liana Tamburelli [2016] eKLR

Case Number: Succession Cause 78 of 2010 Date Delivered: 15 Feb 2016

Judge: Said Juma Chitembwe

Court: High Court at Malindi

Parties: Milena Bora v Liana Tamburelli

Citation: Milena Bora V Liana Tamburelli [2016] eKLR

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Caroline Achieng Oron V John Mingeyi Mingeyi [2016] eKLR

Case Number: Succession Cause 11 of 2015 Date Delivered: 15 Feb 2016

Judge: David Shikomera Majanja

Court: High Court at Homabay

Parties: Caroline Achieng Oron v John Mingeyi Mingeyi

Citation: Caroline Achieng Oron V John Mingeyi Mingeyi [2016] eKLR

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Lucia Wanjiku Githinji V Anna Muthoni Githinji [2016] eKLR

Case Number: Succession Cause 820 of 2009 Date Delivered: 15 Feb 2016

Judge: Margaret Waringa Muigai

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Lucia Wanjiku Githinji v Anna Muthoni Githinji

Citation: Lucia Wanjiku Githinji V Anna Muthoni Githinji [2016] eKLR

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In Re Estate Of Roman Kariuki Kiru (Deceased) [2016] eKLR

Case Number: Succession Cause 979 of 1992 Date Delivered: 15 Feb 2016

Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: In re Estate of Roman Kariuki Kiru (Deceased)

Citation: In Re Estate Of Roman Kariuki Kiru (Deceased) [2016] eKLR

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In Re The Estate Of Charles Ndegwa Kiragu Alias Ndegwa Kiragu – Deceased [2016] eKLR

Case Number: Succession Cause 420 of 2013 Date Delivered: 15 Feb 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: In re the Estate of Charles Ndegwa Kiragu alias Ndegwa Kiragu – Deceased

Citation: In Re The Estate Of Charles Ndegwa Kiragu Alias Ndegwa Kiragu – Deceased [2016] eKLR

Admissibility of Secondary Evidence, as a general rule is only allowed in the Absence of Primary Evidence

 

In re the Estate of Charles Ndegwa Kiragu alias Ndegwa Kiragu – Deceased

Succession Cause No 420 of 2013

High Court of Kenya at Nyeri

JM Mativo J

February 15 2016

Reported by Phoebe Ida Ayaya

 

Brief facts

The application before the court sought to dispense with the production of an original document as sought and allow a copy of the document in question to be produced as evidence. According to the applicant, the document in question was an agreement by the parties with regard to the distribution of the estate where all the parties were satisfied and all including the protestor signed the said document. The document the witness had in court was a copy and she sought to produce it triggering an objection from the Protestor.

The Applicant applied to have the said copy produced under the provisions of section 68 of the Evidence Act. He also stated that the document in question was secondary evidence hence admissible and that they served the Chief with witness summons but the Chief did not attend court and added that the document was not denied by the protestor who recognized his signature and that the existence of the document which was not in dispute.

Counsel for the Protestor opposed the production of the copy and submitted that the so-called certified copy fell within the exceptions of the provisions of the section 68 of the Evidence Act. The Assistant Chief who was not identified nor was he the maker or custodian of the original document purportedly certified the copy. The Protester further submitted that certification required comparison with the original and it was not clear who had custody of the original. The Protester also claimed that no explanation was offered as to why the Chief could not attend court and that no notice was issued under section 69 of the Evidence Act and that he required cross-examining the maker of the documents on for its contents.

 

Issues

i.                     Whether secondary evidence, as a general rule was admissible only in the absence of primary evidence

ii.                   Nature and effect of the best evidence rule principle

iii.                  Whether Secondary evidence could be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the exceptions provided under section 68 of the Evidence Act.

iv.                Whether the mere admission of secondary evidence, amounted to its proof.

v.                  Whether notice to produce the original document under section 69 of the Evidence Act was required to render secondary evidence admissible in a court of law

vi.                Circumstances a party was to prove before the court allowed adducing of secondary evidence that proved contents of the original

 

Evidence Law - primary and secondary evidence- admissibility of evidence - whether secondary evidence, as a general rule was admissible only in the absence of primary evidence- Evidence Act, sections 65, 66,67

Evidence law- primary and secondary evidence- admissibility of evidence- nature and effect of the best evidence rule principle - the basis of the best evidence rule, which provided that documents were proved by the best evidence- Evidence Act, section 67

Evidence law- secondary evidence- admissibility of evidence- the circumstances under which the court would accept secondary evidence of a document- whether secondary evidence could be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the exceptions provided under section 68 of the Evidence Act- circumstances a party was to prove before the court allowed adducing of secondary evidence that proved contents of the original –Evidence Act, sections  66, 67,68,69

Evidence law –– notice to produce a document– to whom such notice was given – whether notice to produce the original document under section 69 of the Evidence Act was required to render secondary evidence admissible in a court of law - Evidence Act section 69

Relevant provisions of the Law

Evidence Act

Section 66

Secondary evidence includes certified copies given under the provisions contained in the Act; copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; copies made from or compared with the original; counterparts of documents as against the parties who did not execute them; oral accounts of the contents of a document given by some person who has himself seen it.

Section 67

Documents must be proved by primary evidence except in cases set out in Section 68 of the Act where secondary evidence may be given of the existence, condition, or content of a document. The definition of primary evidence is to be found in Section 65 of the same Act. Generally speaking, primary evidence means document itself produced for the inspection of the court

Section 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) (a) In cases mentioned in paragraphs (a), (c), and (d) of subsection (1), any secondary evidence of the contents of the document is admissible.

 

 (b)  In the case mentioned in subsection (1) (b), the written admission is admissible.

 

Section 69

Secondary evidence of the contents of the documents referred to in section 68(1)(a) of this Act shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such a notice to produce it as is required by law or such notice as the court considers reasonable in the circumstances of the case:

 

 Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases—

 

 (i) when the document to be proved is itself a notice;

 

 (ii) when from the nature of the case, the adverse party must know that he will be required to produce it;

 (iii) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

 

 (iv) when the adverse party or his agent has the original in court;

 

 (v)  when the adverse party or his agent has admitted the loss of the document;

 

 (vi) when the person in possession of the document is out of reach of, or not subject to, the process of the court;

 

 (vii) in any other case in which the court thinks fit to dispense with the requirement.

 

Held

  1. The Evidence Act under section 67 provided that documents were proved by primary evidence except in cases set out in section 68 of the Act where secondary evidence could be given of the existence, condition, or content of a document. The definition of primary evidence was to be found in section 65 of the same Act.
  2. Section 67 of the Evidence Act provided that documents must be proved by primary evidence except in cases mentioned in section 68. Section 67 was the basis of what was called the best evidence rule, which provided that documents were proved by the best evidence. The allowance of secondary evidence was a concession by the law to allow the second best. The optimal was the document itself or whatever would comprise the primary evidence. It was rarely the case that secondary evidence was allowed where a party could have produced the original.
  3. The best evidence rule was a legal principle that held an original copy of a document as superior evidence. The rule that was the most universal, the best evidence that the nature of the case would admit should be produced, meant that so long as the higher or superior evidence was within the possession of a party, or could be reached by the party, no inferior proof could be allowed. Secondary evidence of the contents of a document could not be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the exceptions provided under section 68 of the Evidence Act.
  4. The conditions laid down in section 68 of the Evidence Act were to be fulfilled before secondary evidence could be admitted.  The rule specified that secondary evidence, such as a copy would not be admissible if an original document existed and could be obtained. No evidence was admissible unless it was the best that the nature of the case would allow.
  5. The best evidence rule in Britain and Wales as used in earlier centuries was now all but defunct. Courts did not confine themselves to the best evidence. Courts admitted all relevant evidence. The goodness or badness of it went only to weight and not to admissibility.
  6. In the USA the best evidence rule was part of article X of the Federal Rules of Evidence (Rules 1001-1008). The rule specified the guidelines under which one of the parties of a court case could request that they be allowed to submit into evidence a copy of the contents of a document, recording or photograph at a trial when the original document was not available. If the party was able to provide an acceptable reason for the absence of the original then secondary evidence or copies of the content of the original document could be admitted as evidence. The best evidence rule was only applied in situations where a party attempted to substantiate a non-original document submitted as evidence during a trial.
  7. The Indian Evidence Act, 1872 laid down the law on pre-conditions for leading secondary evidence; an original document could not be produced by the party relying upon the documents in spite of best efforts, that inability to produce the document could be beyond his control, that either the original document was lost or destroyed or was being deliberately withheld by the party in respect of that document sought to be used.
  8. Where a party wished to lead secondary evidence, the courts were obliged to examine the probative value of the document produced in the court or its contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party had to lay down the factual foundation to establish the right to give secondary evidence where the original document could be produced. It was equally settled that mere admission of secondary evidence, did not amount to its proof. The genuineness, correctness and the existence of the document should have been established during the trial and the trial court should record the reasons before relying on the secondary evidence.
  9. Section 66 of the Evidence Act provided that secondary evidence included certified copies given under the provisions contained in the Act; copies made from the original by mechanical processes which in themselves ensured the accuracy of the copy, and copies compared with such copies; copies made from or compared with the original; counterparts of documents as against the parties who did not execute them; oral accounts of the contents of a document given by some person who has himself seen it.
  10. Secondary evidence as a general rule was admissible only in the absence of primary evidence and when a proper explanation of its absence was given. Such secondary evidence could not be admitted without the non-production of the original being first accounted for in a permissible manner and only after satisfying the conditions provided for under section 68 of the Act. There must be proper justification to allow a party to adduce secondary evidence. The Applicant had not satisfactorily accounted for the non-production of the original document.
  11. Before a party was allowed to adduce secondary evidence to prove contents of the original, the party was to prove the following:-

a)    the existence or due execution of the original;

b)    the loss and destruction of the original or the reason for its non-production in court;

c)    on the part of the party, the absence of bad faith to which unavailability of the original can be attributed.

The correct order of proof was -existence, execution, loss, and contents. A photocopy could not be produced without accounting for the original.

  1. The document to be produced in the case before the court was a copy.  It was not clear who had the custody, power or control of the original or whether the document allegedly held by the chief was an original because the copy that the applicant sought to introduce was a copy of a certified copy. It was not clear whether the chief was holding the original or a copy.  The reason offered for the inability to avail the original was that the Chief had failed to attend court. He was only served once and there was no application or effort to make a second attempt.  It was not shown that the inability to produce the original fell under any of the above exceptions. Above all, no notice was served upon the said Chief as provided for under the section 68 of the Evidence Act.
  2. There was no reason to dispense with the best evidence rule that required dispensing with the production of the original as sought and allowing a copy of the original document.

 

Application dismissed, applicant allowed right of appeal in 30 days

 

Cases

East Africa;

  1. Wambui, Jane v Stephen Mutembi & another Succession No 691 of 1995 – (Explained)

India

1. Rakesh Mohindra v Anita Beri & others Civil Appeal No 13361 of 2015 – (Mentioned)

United Kingdom

  1. Omychund v Barker (1744) 125 ER 1310; (1744) Willes 538 – (Mentioned)
  2. Lee v Tambago 544 SCRA 393 – (Explained)

Texts and Journals

1. Ormero,D., Perry,D.,)Eds)(2015) Black Stone’s Criminal Practice London: Oxford University Press

Statutes

East Africa;

Evidence Act (80) sections 67,68,69 – (Interpreted)

India;

1. Evidence Act, [India] 1872 – (Interpreted)

USA

  1. Federal Rules of Evidence [USA] article X rules 1001-1008 – (Interpreted)

Advocates: None Mentioned

 

 

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Judge: William Musya Musyoka

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re Estate of David Kinyanjui Kagiri (Deceased)

Citation: In Re Estate Of David Kinyanjui Kagiri (Deceased) [2016] eKLR

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Citation: George Okoth Were V Festus Ochieng Nyakumba [2016] eKLR

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Judge: William Musya Musyoka

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Parties: In the Matter of the Estate of Salome Mukami Kariuki (Deceased)

Citation: In The Matter Of The Estate Of Salome Mukami Kariuki (Deceased) [2016] eKLR

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Judge: Jairus Ngaah

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Parties: Nancy Wabugo Nyamu & Christopher Mwangi Nyamu v Timothy Maitho Nyamu

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Case Number: Succession Cause 18 of 2015 Date Delivered: 12 Feb 2016

Judge: David Shikomera Majanja

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Judge: Jairus Ngaah

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