Meyer Enterprises Limited v Bernice Ngotho & others(Sued as the Legal Representatives of the Estate of Antony Athanas Ngotho) [2014] KEHC 4980 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL &ADMIRALTY DIVISION

CIVIL CASE NO. 516 OF 2004

MEYER ENTERPRISES LIMITED  :::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

BERNICE NGOTHO & OTHERS

(sued as the legal representatives of the estate of

ANTONY ATHANAS NGOTHO :::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT

R U L I N G

The Ruling herein relates to the Oral Objection by Mr. Nyaribo, Counsel for the Defendant, against the production of the bundle of receipts which form part of the Plaintiff’s Bundle of Documents.  This objection was raised when the Plaintiff’s witness was already on his feet testifying in this matter.

The Defence alleges that they had served upon the Plaintiffs a Notice of None Admission of the said documents/receipts on 20th June, 2013.  The said receipts which are none admit are over 100 in number.

While the Defence admits that under Section 35(1) of the Evidence Act there is an exception to calling makers to produce documents, party relying on the documents must show that serious attempts have been made to get the authors of the documents to come and produce them.  The Defence contends that no such attempts have been made by the Plaintiff. The Defence further contends that those receipts do not even show what was being paid for and that some have no relationship with the matter before the court.

On their part, the Plaintiff submits that they have tried all they can to bring to court the original receipts and their copies and that due to their numbers it would be impossible to bring the authors of those receipts to court.

I have carefully considered the Defendant’s objection to the production of the said receipts.  What I have to note firstly is that the Plaintiff has produced to this court all the originals of the disputed receipts.  Their copies are in the bundle of documents by the Plaintiff.

The other thing to be noted is that by the nature of the Plaintiff’s claim, the Plaintiff was bound to buy the building materials from whichever hardware the Plaintiff was able to get the said materials.  By its very nature, it would be virtually impossible for the Plaintiff to call as witnesses all the authors of the said receipts.  Perhaps the guiding principle to the court should be the kinds of goods which were purchased vide the said receipts.  If those goods are relevant to the subject matter of the court, the court should be at liberty to admit the documents.  The other issue to be considered is the alleged date of purchase.  If the date covers the period under inquiry, then the receipts could be admitted.

On the basis of the items purchased and the dates upon which the same were done, I am satisfied, after perusing all the said receipts, that they bear semblance to the claim in court.  I have also considered the amounts claimed under those receipts.  They range from Kshs.1,000/= upwards.  It is difficult to envisage a situation where the Plaintiff goes out of his way to manufacture the said receipts or to forge them.  Lastly, most of the receipts were issued by established business enterprises which can come before this court and testify.  However, in my view, that would not be an economical use of the court’s time, and, considering the fact that most of the receipts were issued in 2003, some of those business concerns may not be existing today, and even if they do, they may not have the records, and may only come to this court to say they issued the receipts.

Having considered all those receipts, none of them appears to me to be out of touch with the claim before the Court. I will allow the production of all those receipts subjection to allowing the Defendant to raise any objection on any particular receipts, raising particular issues on that receipt, and why the particular receipt should not be admitted.

I have also observed that a good part of the Plaintiff’s claim is hinged on the production of those receipts.  It is therefore not fair to exclude the production of those original receipts unless a serious allegation, say of fraud, is established in their procurement, or one or more or a series of them are established to have absolutely no bearing to the suit.

Needless to add, the court will, in its discretion determine the prorative value of each such receipt if produced in evidence.

In the upshot, the objection by the Defendant to the production of the original receipts whose copies are already in the Plaintiff’s bundle of documents hereby fails.

DATED, READ AND DELIVERED AT NAIROBI

THIS 15TH DAY OF MAY 2014

E. K. O. OGOLA

JUDGE

PRESENT:

No appearance for Plaintiff

Cherono holding brief for Nyaribo for Defendant

Teresia – Court Clerk