Ndapatana v National Housing Corporation (Civil Appeal E010 of 2022) [2025] KECA 865 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a missing witness's affidavit can still be used as evidence, and appeals challenging it must focus on relevant documents only.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred by holding that the Record of Appeal was complete
- 2.Whether the learned Judge erred by holding that the supporting affidavit sworn by David Ngugi on 16th August 2010 was admissible in evidence
Key legal issues
#Whether the record of appeal in the ELC was complete despite omitted pleadings
The record was complete; for an interlocutory appeal only the memorandum of appeal, the order appealed from and the pleadings relating to the impugned order are mandatory.
Order 42 rule 13(4) mandates documents in paragraphs (a), (b) and (f), but the judge may dispense with any other document that is not relevant. In an interlocutory appeal, the necessary pleadings are the Motion giving rise to the order, the supporting and opposing affidavits, annexures, submissions and notes of proceedings. None of the issues on appeal turned on the omitted documents, so the ELC judge was right to find the record complete.
Whether the affidavit of David Ngugi, whose attendance could not be procured, was admissible under sections 34 and 35 of the Evidence Act
The affidavit was admissible; the respondent laid sufficient basis for the witness's unavailability and the appellant could still rebut the evidence at trial.
Sections 34 and 35 admit statements of makers who cannot be found or whose attendance cannot be procured without unreasonable delay or expense. The respondent traced its efforts to locate Ngugi; the change of circumstances arose after hearing had commenced, overtaking pre-trial directions. Admissibility is distinct from probative value: the trial court will assess veracity on the merits, and the appellant has ample opportunity to challenge the affidavit.
Legal principles established
#- In an interlocutory appeal, the mandatory record comprises the memorandum of appeal, the order appealed from, and only the pleadings relating to the application giving rise to that order; peripheral documents may be dispensed with.
- Admissibility of a document under sections 34 and 35 of the Evidence Act does not determine its truth or probative value, which is for the trial court on the merits.
- Sections 34 and 35 of the Evidence Act permit admission of statements of a maker who cannot be found or whose attendance cannot be procured without unreasonable delay or expense, and do not exclude statements made in a previous interlocutory application.
Court orders
#- 1.The appeal is dismissed
- 2.The judgment and decree of the ELC at Malindi (M. A. Odeny, J.) delivered on January 19, 2022 are upheld
- 3.The appellant shall bear the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Malindi
- ELCA No. 8 of 2019 (consolidated with ELCA Nos. 9 & 10 of 2019)
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory basis not expressly cited in the judgment)
Relief refused
#Appellant's appeal against the ELC judgment on completeness of the record of appeal and admissibility of the affidavit
The ELC judge correctly held the interlocutory record complete and correctly admitted the affidavit under sections 34 and 35 of the Evidence Act
Costs
The appellant shall bear the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In our view, none of the issues in contention in the interlocutory appeal before the ELC turned on any of the pleadings and documents which the appellant complains were omitted from the Record of Appeal.
Admissibility of a document is one thing and its probative value quite another. These two aspects cannot be combined.
we reach the inescapable conclusion that the Appeal fails and is hereby dismissed. Consequently, the judgment and decree of the ELC at Malindi (M. A. Odeny, J.) delivered on January 19, 2022 are hereby upheld.
The appellant shall bear the costs of the appeal.
Issues in the judgment
#The ELC judgment is quoted describing the trial Magistrate as female ('herself', 'misdirected herself') in paragraph 19 of the judgment's narrative, but the ruling of 23rd July 2019 is attributed to a male trial Magistrate ('the trial Magistrate observed... he would sufier prejudice'), creating an inconsistency in the record as to the trial judge.
The impugned ELC judgment as quoted refers to 'the supporting afidavit of the said Daniel Ngugi' whereas the witness's name throughout is David N. Ngugi.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndapatana v National Housing Corporation (Civil Appeal E010 of 2022) [2025] KECA 865 (KLR)", Case Analysis (2025). Civil Appeal (unnumbered on record; from ELCA No. 8 of 2019 consolidated with Civil Appeal Nos. 9 & 10 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/865/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.