1.This suit is part-heard with the plaintiff having testified on February 15, 2022 and closed his case. On the same day, the defendant called DW1, James Kamwere Muriuki a land surveyor and DW2 Samwel Njuguna, a director of Thindigua Co Ltd. By consent of the parties, the matter was adjourned to May 3, 2022 for further defence hearing. Before the next hearing, the defendant’s counsel Ms Beaco filed a notice of motion dated March 2, 2022 seeking to recall DW1 to produce a supplementary list of documents dated July 9, 2019 which was said to have been inadvertently omitted when DW1 took the stand. The application was not opposed and was thus allowed as prayed on March 22, 2022.
2.On September 27, 2022 DW1 was recalled to produce the aforesaid documents in the supplementary list of documents. However, the plaintiff’s counsel Mr Kangata objected to the production of documents No 2 and 3 on grounds that DW1 was neither the custodian nor maker of those documents. In reply, the defendant’s counsel pointed out that application dated March 2, 2022 was not opposed and urged the court to allow production of those documents as exhibits No 1-5 since the witness had already testified on the same. In a rejoinder Mr Kangata was emphatic that the application dated March 2, 2022 had not specified the nature of documents sought to be produced otherwise he would have objected to the same. He maintained that DW1 can only produce documents that he has capacity to so produce.
3.A glean of the supplementary list of documents dated July 9, 2019 contains the following documents;a.Copy of certificate of registration No 61741 for James Kamwere.b.Copy of the letter dated November 26, 1991 by commissioner of lands to the chairman, Thindigua Co Ltd.c.Copy of the letter dated May 27, 1994 by Commissioner of Lands to Thindigua Co Ltd.d.Copy of survey plan for plots LR No 76/32/1-11, folio No 157, register No 43 authenticated on 29/05/82.e.Copy of survey plan for plots LR No 76/32/1-11 with new entry at LR No 76/32/7.
4.The plaintiff objects to the production of documents Nos b and c highlighted above by DW1 on the grounds that he is neither the maker nor the custodian of the said documents. In addition, the plaintiff’s argument is that the defendant’s application served on March 2, 2022 did not state the particulars of the documents to be produced and that was the reason why he did not oppose the application in the first place. It was his view that the witness can only produce documents that he has capacity to do so.
5.In his testimony, DW1 adopted his witness statement dated July 9, 2019 whereby page 2 alludes to the documents Nos b & c above. The documents are found at pages 28 - 29 of the defendant’s bundle of documents filed on July 29, 2019.
6.The gist of his evidence was the commissioner of lands vide those letters approved the subdivision and change of user for the subject land, LR No 76/32 upon which DW1 submitted the necessary deed plans for the director of survey’s signature and registration.
7.It is the plaintiffs case that at all material times he holds a title for the suit land. That the defendant has trespassed onto the land and brought building materials thereon and urged the court for orders of eviction interalia.
8.The defendants case is that the suit land was public land set aside for use by the residents of Thindigua estate as a community centre and that the structures erected on the said land were done through the fundraising efforts of the residents in Thindigua estate for their use well before the plaintiffs purported ownership.
9.It is trite that the law of evidence requires makers of documents to produce such documents as evidence when called to do so. However, there are exceptions recognized in law and in particular in relation to public documents as the impugned letters herein. Section 35 of the Evidence Act provides as follows in relation to production of documentary evidence;
10.Further sections 38 and 39 of the Evidence Act provide for admission of evidence in special circumstances as follows;
11.From the record the court would like to agree with the plaintiff that the application dated the March 2, 2022 did not indicate the documents that DW1 was being recalled to produce and for that reason the issue raised by the defendant that the objection may perhaps have been determined is not tenable.
12.I have carefully perused the impugned copies of the letters dated November 26, 1991 and May 27, 1994 authored by the commissioner of lands and addressed to Thindigua Co Limited and it is clear that they were signed on behalf of the commissioner of lands. The letters are addressed to Thindigua Co Limited which is not a party to this suit.
13.The question is whether or not the witness, DW1 is a competent witness in as far as the production of the letters is concerned. The said letters were neither authored by DW1 nor addressed to him. Notwithstanding the explanation given by DW1 that he proceeded to carry out subdivision on the strength of the impugned letters, the pertinent question that needs determining is whether in the circumstances of this case, DW1 is a competent witness to produce the said documents. Going by the tenor of the provisions of the Evidence Act aforestated, the court answers that in the negative. I say so because DW1 is neither the maker nor the custodian of the documents. Secondly there is no evidence laid before this court to show that the office of the commissioner of lands and/or its successor has ceased to exist, or cannot be found, or is incapable of giving evidence, or if its attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable. Save his evidence that he proceeded to act for a third party to prepare subdivision schemes, the witness, in my view, may find difficulty in answering questions with respect to the said documents.
14.In the end the court finds the objection merited and DW1 be and is hereby stepped down to allow the defendant to substitute and or avail the appropriate witness to so produce the documents.
15.Costs shall be in the cause.