Court rejects dead person’s statement

by Wakili Liam
high court

The Environment and Lands Court in Nakuru has blocked efforts by a man to adduce his late wife’s statement in a land case.

Mombasa Judge Sila Munyao has sued the family over possession of the prime property in Nakuru.

Nakuru’s Justice Mwangi Njoroge barred Joseph Yego, the husband of the late Sally Cherutich, a nurse, from adopting her (Cherutich’s) statement of June 25, 2021, as evidence in the case.

Mr Njoroge ruled that there was no evidence that Cherutich’s statements were filed in court and served to judge Munyao. He noted that her witness statement was not in the court file as per the Civil Procedure Rules.

“The statement by the late defendant (Cherutich) is not court stamped and the court will not allow it as evidence in the case,” ruled Njoroge.

According to the judge, adopting the statement would be prejudicial, an ambush, and an injustice to judge Munyao, who had already closed his case, being the plaintiff.

The judge instructed Yego to stick to the statement he recorded on June 25 this year and avoid deviating from it. He said that without Cherutich’s demise, Yego would not be able to testify.

“Despite the law requiring Yego to file his statement in detail, the only statement he filed is the scanty statement filed on June 17, 2022,” said Njoroge.

He faulted Yego for not including all the relevant details in his statement when he knew too well he was to testify in the matter.

The judge said that when he filed his statement, he knew the state of the record as he had a lawyer representing him through the proceedings.

“This court must eternally guard against the infilling of gaps in a litigant’s case in breach of rules of procedure and in a manner that may occasion the other litigants considerable harm,” said the judge.

He further noted that since the case was filed in 2018 and Cherutich died in 2021, she had time to file her statement when she was alive.

The judge refused to stand Yego down and allow him time to file further statements. He said the case had been adjourned several times, meaning he had enough time to do so.

Munyao and his wife Linda Chepkorir filed the case to reclaim the property in Naka estate estimated to be worth about Sh3 million in 2018.

He claims he became the registered owner of the land in 2010 and holds a certificate of lease dated December 2, 2010, as proof of ownership.

In his response, Yego claims that his wife acquired the property on February 8, 1997, and got the lease on September 3, 2018, and was to pay Sh18,235.

He adds that in 2018, they sold the land to one Peter Ondande for Sh2.5 million before the dispute arose.


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