Shikulu (Suing as the Legal Representative of the Estate of Shikulu Atakha Chibenda - Deceased) v Matiani & 4 others (Environment and Land Case E022 of 2023) [2026] KEELC 4107 (KLR)
The bottom line
#A Kenyan court allowed a deceased witness's statement to be used at trial, but only as an exhibit, not as main evidence.
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 plaintiff deserves the orders sought, namely admission of the witness statement of the late Andrew Ongayo Shikoto as evidence in chief, dispensing with cross-examination, and admissibility under Sections 33 and 35 of the Evidence Act
Key legal issues
#Whether the witness statement of a deceased witness may be admitted under Section 35 of the Evidence Act
The statement is admissible and may be produced at trial as an exhibit by the plaintiff, but not deemed evidence in chief as sought
The court applied Section 35 of the Evidence Act, which admits statements of persons who are dead where direct oral evidence would be admissible, provided the maker had personal knowledge of the matters. The witness had recorded a statement in favour of the plaintiff containing averments on matters in dispute before his death. The court was satisfied the conditions were demonstrated, but modified the relief: the statement would be produced as an exhibit at trial rather than stand as evidence in chief.
Legal principles established
#- Under Section 35 of the Evidence Act, a statement of a deceased maker in a document may be admissible in civil proceedings where direct oral evidence would be admissible, provided the statutory conditions are met, including that the maker had personal knowledge of the matters stated.
Court orders
#- 1.The witness statement of Andrew Ongayo Shikito (deceased) be produced at the trial by the plaintiff as an exhibit (not as evidence in chief as sought)
- 2.The costs of the application shall abide the outcome of the matter
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not stated in the judgment
Relief refused
#That the witness statement be deemed as the evidence in chief of the deceased witness
The court was convinced the statement may be produced as an exhibit at trial only, not as evidence in chief
Dispensing with cross-examination of the deceased witness
Not granted; the statement was admitted as an exhibit rather than as evidence in chief, so the prayer fell away
Admission pursuant to Section 33 of the Evidence Act
The court grounded its decision on Section 35 of the Evidence Act only
Costs
The costs of the application shall abide the outcome of this matter.
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.
I am therefore convinced that the witness statement of Andrew Ongayo Shikito (deceased) may be produced as an exhibit at the trial, and not as evidence in chief as sought.
I hereby order that the witness statement of Andrew Ongayo Shikito be produced at the trial by the plaintiff as an exhibit. The costs of the application shall abide the outcome of this matter.
Issues in the judgment
#The name of the deceased witness is rendered inconsistently within the judgment ('Shikoto' and 'Shikito')
The judgment does not identify the court, the case number, or the names of the parties; only roles (plaintiff/defendants) appear
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shikulu (Suing as the Legal Representative of the Estate of Shikulu Atakha Chibenda - Deceased) v Matiani & 4 others (Environment and Land Case E022 of 2023) [2026] KEELC 4107 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4107/eng@2026-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.