[2021] KEELC 2956 (KLR)
The court found that the documents sought by the plaintiff/applicant are material to the issues in dispute and necessary for the fair determination of the case. The defendants did not demonstrate any prejudice that would result from producing the documents. The court held that, in accordance with the Evidence Act...
Source-derived case information.
- Citation
- [2021] KEELC 2956 (KLR)
- Parties
- Applicant: Disa Enterprises Limited; Respondent: Cecilia Cherono Milgo & 50 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 478 of 2018
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application for Production of Documents
- Outcome
- application allowed in part
- Judges
- LC Komingoi
- Legal Topics
- Discovery of Documents, Production of Title Deeds, Land Ownership Disputes, Evidence Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Disa Enterprises Limited
Applicant
Cecilia Cherono Milgo & 50 Others
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application for Production of Documents
Legal Issues
- 1 Whether the defendants should be compelled to produce specific documents relating to the ownership and allotment of the suit property.
- 2 Whether the plaintiff is entitled to inspect and take copies of the documents listed in the application.
- 3 Whether failure to produce the documents should result in striking out the defendants' statements of defence and counterclaim.
Ratio Decidendi
The court found that the documents sought by the plaintiff/applicant are material to the issues in dispute and necessary for the fair determination of the case. The defendants did not demonstrate any prejudice that would result from producing the documents. The court held that, in accordance with the Evidence Act and the Civil Procedure Rules, the plaintiff is entitled to seek production and inspection of documents relevant to the suit. The application was therefore allowed in terms of the prayers seeking production, inspection, and delivery of the documents within fourteen days. The costs of the application were ordered to abide the outcome of the main suit.
Court Disposition
application allowed in part
Orders
- The application is allowed in terms of prayers 2, 3, 4, and 5 of the Notice of Motion dated 24th February 2020.
- Defendants to produce and deliver the specified documents within fourteen (14) days from the date of the order.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 478 OF 2018
DISA ENTERPRISES LIMITED.............................................PLAINTIFF/APPLICANT
VERSUS
CECILIA CHERONO MILGO & 50 OTHERS...............DEFENDANTS/RESPONDENTS
RULING
1. This is the Notice of Motion dated 24th February 2020 brought under section 3A and Section 22 of the Civil Procedure Act, Order 51, Rule 1 of the Civil procedure Rules, 2010, Section 63(e) of the Civil Procedure Act (Cap 21), Article 159 (d) of the Constitution of Kenya 2010.
2. It seeks orders:-
1. Spent.
2. That this honourable court be pleased to issue an order directing the 22nd and 23rd and 24th defendants to produce the following documents either in original and/or certified copies:
a. Title Deed to the property known as LR No 209/11620, Saika Estate;
b. Title Deed Plan No. 150509 issued by the Director of Survey on 10th of August 1912;
c. Certificate of registration of Saika Makonge Juakali Association;
d. Agreements for sale of shares with Saika Makonge Juakali Association;
e. Share certificates and allotments of Plots Nos 65, 66 and 68; and
f. Defendants’/respondents’ membership corticated of Saika Makonge Juakali Association.
3. That this honourable court be pleased to issue an order direction the 1st, 5th, 8th, 9th, 15th, 18th, 29th, 37th, 28th and 46th Defendants to produce the following documents either in original and/or certified copies.
a. The certificate of registration of Saika Makonge Juakali Association.
b. The defendants membership certificate of Saika Makonge Juakali Association.
c. The title documents for the property known as 11564, 115665, 11567, 11455, 11337 and 11620.
d. Letters of allotment issued to the defendants.
e. Approval to subdivide the parcels of land from the county council.
f. Deed plans issued by the relevant authorities.
g. Development plans issued by the relevant authorities.
h. Authority from the local administration, national government and county government to construct rental, commercial, residential and dwelling buildings.
4. That the plaintiff/applicant be allowed to inspect and take copies of all the documents listed in prayer 2(a) to (f) above all inclusive and prayer 3(a) to (h) above all inclusive and related to the matter in question which are in the defendants’/respondents’ possession.
5. That this honourable court be pleased to order that the said documents to be delivered within fourteen (14) days from the date of the order.
6. That in default the 22nd, 23rd and 24th defendants/respondents’ written statements of defence and counterclaim dated 12th February 2020 and the 1st, 5th, 8th, 9th, 15th, 18th, 29th, 37th, 38th and 46th defendants/respondents’ statement of defence should be struck out.
7. That the plaintiff/applicant be awarded costs of this application.
3. The grounds are on the face of the application and are set out in paragraphs 1 to 5.
4. The application is supported by the affidavit of Lilian Atuo Opondo, sworn on the 24th February 2020.
5. The application is opposed. There is a replying affidavit sworn by Patrick Kerongo, Advocate of the 1st, 5th, 8th, 9th, 15th, 18th, 29th, 37th and 38th defendants/respondents sworn on the 6th November 2020.
6. It is the plaintiff’s/applicant’s case that the documents sought to be produced are material to its case. Mr. Kerongo, for some of the defendants, on the other hand contends that they have already filed their list of documents. That the said list has been served on the plaintiff. Further that some of the documents being sought are in possession of the 53rd – 56th defendants.
7. Section 69 of the Evidence Act provides that: -
“Secondary evidence of the contents of the documents referred to in Section 68(1) (a) of this Act shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his advocate such notice to produce it as is required by law or such notice as the court considers reasonable in the circumstances of the case……”.
It is the plaintiff’s/applicant’s case that it requires the said documents in order to adequately respond to the issues raised by the defendants’/respondents’ in their statement of defence and counterclaim.
8. The defendants have not demonstrated that they will suffer any prejudice if such documents are availed to the plaintiff.
9. I find merit in this application and I allow the application in terms of prayers No 2, 3, 4 and 5 respectively. The costs of this application do abide the outcome of the main suit.
It is so ordered.
..........................
L. KOMINGOI
JUDGE
In the presence of:-
Ms Daudi for the Plaintiff
No appearance for the Defendants
Phyllis - Court Assistant