Miriam Nkatha Ncebere & Esther Karwitha Mwiti v Christine Nkuene Muchungi [2018] KEELC 2345 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC NO. 298 OF 2017

MIRIAM NKATHA NCEBERE...........................1ST PLAINTIFF

ESTHER KARWITHA MWITI..........................2ND PLAINTIFF

VERSUS

CHRISTINE NKUENE MUCHUNGI......................DEFENDANT

RULING

1. This ruling touches on production of documents. During the course of the trial, PW 1, the plaintiff had embarked on producing her documents as evidence and was relying on the list of 19. 2.2018.  Counsel for defendant indicated that he desired the documents listed as item 3 and 4 to be produced by their makers.

2. Item 3 is an extract from the adjudication record showing that plot No. 754 in Kianjai adjudication section which is 1. 29 acres is in the name of Ncebere Reria.

3. Item 4 is a letter from the DLASO Tigania West dated 2. 6.2016 indicating that land parcel No. 1510 and parcel no. 754 are recorded in name of Nchebere Reria (deceased) and that the land is in Kianjai adjudication section.

4. Defence counsel avers that this is a complex case and hence the history of this case is important.  It is averred that the person who issued the books of existing rights ought to be cross examined otherwise defendant will be denied an opportunity to test the conclusion that led to the writing of these documents.

5. Plaintiff’s counsel avers that the adjudication process was long completed and documents were then taken to Nairobi for issuance of title deeds and that title deeds were issued in name of deceased.  Plaintiff avers that after closure of Kianjai adjudication section the officers concerned were deployed to other areas in Kenya and hence these officers cannot be traced.

6. Further, plaintiffs’ counsel avers that item 3 and 4 (the disputed documents are supported by a certificate of official search and hence the documents are only necessary to show the history of the land from time of recording of existing rights through adjudication to registration and the issuance of title deeds.

7. Counsel for plaintiff also contends that though they served the documents on 19. 2.2018, no notice of objection to produce was ever served or even a notice to call the maker in accordance with section 68 of the evidence act.

Determination

8. In the case of Evangeline Nyegera (suing as the legal representative of Felix M’Ikiugu alias M’Ikiugu Jeremiah M’Raibuni (deceased vs Godwin Gachagua Githui court of Appeal civil appeal no. 28 of 2016 it was held that “The test for admission of evidence is relevancy…..”.The court must therefore interrogate the relevancy of the documents which plaintiff intends to produce.

9. I find that the title to land no. 754 was issued on 28. 11. 2014.  One of the two documents in dispute, item 3, the extract of the adjudication record was stamped by the DLASO on 1. 8.2015. Item 4, the letter from DLASO Tigania west is dated 2. 6.2016.  It follows that the office of DLASO is existing in one way or the other. Further, the office of DLASO is under the ministry of Lands. It cannot be said that there is no one who can produce the said documents.

10. I have taken it upon myself to peruse the other documents in plaintiffs list other than the disputed ones (item 3 & 4).  I find that even the office of Director of Land adjudication and settlement officer Nairobi was seeking for clarity from the Meru county office with regard to records of existing rights- see item no. 8. In plaintiff’s list Item 9 is also another letter dated 18/8/2015 from Director of adjudication in Nairobi still seeking further clarity on the dispute and therein it is stated that “it is not clear where the said plot no. 754 was demarcated”. If the director of Land adjudication in Nairobi was seeking for clarity from DLASO Tigania West County, it can only mean that such records (wherever they are) are very important. Against this background, it becomes very crucial for the DLASO’s office to own their records and interpret the same before this court. After all even if the sub county office may have wound up, the county office under the ministry of lands is certainly in existence.

11. The documents objected to can be termed as public documents by dint of the provisions of section 79 (1) (iii) of the evidence Act.  Ordinarily, I would have no problem if such documents are produced without calling the maker. However, it is also presumed that such public documents can easily be accessed in the relevant public offices. In the instant case though, plaintiff’s counsel avers that the relevant office wound up. It is also not certain if the director of adjudication has these documents. If someone wanted to verify these documents, where would they go to?.

12. Against this back ground, I am inclined to uphold the objection with a rider that since the documents are public documents from the ministry of lands, (department of adjudication and settlement), then any  official from the Director’s office in Nairobi or from Meru county Land Adjudication and settlement office can produce the documents and not necessarily the maker of the same.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 25TH DAY OF JULY, 2018.

IN THE PRESENCE OF:-

Court Assistant:Janet/Galgalo

Carlpeters Mbaabu for plaintiff

Riungu holding brief for Mwanzia for defendant

Plaintiff present

HON. LUCY. N. MBUGUA

ELC JUDGE