1.The Evidence Act cap 80 laws of Kenya provides at section 35 as follows:
2.Sections 79, 80 and 81 of the Evidence Act relating to proof of public documents are in the following terms:79.Distinction between public and private documents.(1)The following documents are public documents—(a)documents forming the acts or records of the acts—(i)of the sovereign authority; or(ii)of official bodies and tribunals; or(iii)of public officers, legislative, judicial or executive, whether of Kenya or of any other country;(b)public records kept in Kenya of private documents.(2)All documents other than public documents are private.80.Certified copies of public documents.(1)Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.(2)Any officer who by the ordinary course of official duty is authorized to deliver copies of public documents shall be deemed to have the custody of such documents within the meaning of this section.81.Proof by certified copies.Certified copies of public documents may be produced in proof of the contents of the documents or parts of the documents of which they purport to be copies.”
3.The Counsel for the Applicant objects to the production in evidence before the court of certain documents listed in the Petitioner’s List of Documents by the witnesses proffered by the Petitioner and requires production by persons in the employ of offices where the said documents were prepared and maintained.
4.The Counsel for the Petitioner respondents that the documents in question are in the nature of public documents which could be produced under section 35 of the Evidence Act by way of “a copy thereof by a party or witness in the matter”.
5.With respect, it is the mode of proof of the contested documents which is in issue. While the court may under section 35 (2) of the Evidence Act permit the production by a person other than the maker of a document other the original thereof, and while proof by certified copies is permissible in case of public documents under section 81, it is in the discretion of the court and the court may still require production of the same by the officer presently in charge of the office where public documents are held, where the discretion of the court is not properly invoked.
6.In this case, while there is no doubt as to the non-availability of the makers of the documents, some whom are deceased and in view of the passage of time since the making of the documents, it has not been shown that the original documents are not in existence and there is no difficulty shown in securing the attendance of the persons presently holding the offices where the documents were made and are maintained, and the original documents may be produced.
7.The Court has considered the submissions by the respective counsel and, particularly, in view of the disputed fact of the validity of the said documents, some which exist in multiple versions, as shown in the examination of the previous witnesses in this matter, requires production of these documents in evidence by a suitable officer in the respective public office where the document in issue was made and retained and who has custody of the original of the said documents.
8.Accordingly, the following documents on the List of Documents relied upon by the Respondents shall be produced by the appropriate officers currently holding the offices where the said public documents were made, received and or retained:1.Certificate of Death Document No. 1 on the Petitioner’s List of Documents;2.Burial permit dated 6/3/1993 Document No. 4 on the List of Documents;3.Letter by Area Chief Document No. 4 on the List of Documents;4.Letter of Area Chief Document No. 8 on the List of Documents;5.Letter of the Deceased dated 20/2/1991 delivered to the Chief then in office.
9.Costs in the cause.Order accordingly.