https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4930

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELCC NO. E039 OF 2022** **DOUGLAS MULANDI MUTUKU …………………………………PLAINTIFF** **-VERSUS-** **ANDREW OCHIENG ……………………………………………DEFENDANT** **-AND-** **DISTRICT LAND REGITSRAR MAKUENI ……..1ST INTERESTED PARTY** **DIRECTOR OF LAND ADJUDICATION** **AND SETTLEMENT …………………………….....2ND INTERESTED PARTY** **DISTRICT LAND ADJUDICATION AND** **SETTLEMENT OFFICER, KIBWEZI …………...3RD INTERESTED PARTY** **RULING** 1. Before this Court for determination is Defendant’s Notice of Motion dated 3rd February, 2024 filed under the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act in addition to Order 2 Rule 1, 10(2)-(6) of the Civil Procedure Rules 2010. The following orders have been sought: - 2. **THAT this Honourable Court be pleased to order the Plaintiff/Respondent to provide the Defendant/Applicant with the following information/documents which are crucial to enable the Defendant plead his defence.** 3. **Letter of offer of parcel of land No. Makueni/Nguu Ranch Scheme/99 by the 2nd and 3rd Interested Parties to the Plaintiff.** 4. **Letter of acceptance of parcel of land No. Makueni/Nguu Ranch Scheme/99 by the Plaintiff.** 5. **Charge by Settlement Fund Trustees (or its successor in law) over parcel of land No. Makueni/Nguu Ranch Scheme/99 in favour of the Plaintiff.** 6. **Discharge of charge parcel of land No. Makueni/Nguu Ranch Scheme/99.** 7. **Receipts in payment of any sums to Settlement Fund Trustees (or its successor in law) over parcel of land No. Makueni/Nguu Ranch Scheme/99.** 8. **Transfer of land in settlement scheme by the Land Settlement Fund Board of Trustees transferring parcel of land No. Makueni/Nguu Ranch Scheme/99 to the Plaintiff.** 9. **Costs of this application be borne by the plaintiff.** 10. The application is supported by the affidavit of Andrew Ochieng sworn on 5th February, 2024. He averred that the Plaintiff has based his claim on ownership of land parcel No. Makueni/Nguu Ranch Scheme/99 on the fact of having been allotted the same by the 2nd and 3rd Interested Parties. That he subsequently took possession of the suit property and was allegedly issued with a title deed by the 1st Interested Party. 11. The Defendant further averred that he entered appearance to the Plaintiff’s suit on 20th June, 2023 and served the Plaintiff with a request for particulars on 31st August, 2023 which has not been responded to. He contended that he requires the completion documents issued by the 1st, 2nd and 3rd Interested Parties in order to enable him plead his defence as desired to challenge the process of allocation and acquisition of the Plaintiff’s title to the suit property. He urged the court to allow the application in the interest of justice. 12. Opposing the application, the Plaintiff filed a replying affidavit duly sworn by himself on 10th April, 2026. He averred that the suit property was duly allotted to him by the 2nd & 3rd Interested Parties and that he had furnished the Defendant with all the related documents within his possession as per his list of documents dated 6th December, 2022. 13. It was further averred that the 1st Interested Party produced other documents in compliance with the orders of this court issued on 30th January, 2025 upon filing of the Plaintiff’s application dated 9th January, 2025. The deponent contended that the documents sought by the Defendant under paragraphs 1(a) to 1(f) of the application are not within his custody and he is therefore unable to produce the same. It was further contended that the present application is frivolous and that it is solely intended to occasion delay. He urged the court to dismiss it with costs. 14. The application was canvassed by way of written submissions. 15. In the Defendant’s submissions dated 18th May, 2026, Counsel argued that the Defendant had requested for particulars showing the acquisition process of the suit premises by the Plaintiff none of which has been produced by either the Plaintiff nor the Interested Parties herein. Counsel submitted that full disclosure aids the enhancement of the overriding objective of efficient utilization of judicial time to deliver effective justice and should not be shrouded in mystery. Reliance was placed on the following authorities: - 16. **Ukulima Co-operative Savings and Credit Society Limited v Co-operative Bank of Kenya Limited [2013] eKLR** 17. **Padhal & another v Bank of Baroda Kenya Limited & another [2022] KEHC 9841 (KLR)** 18. In the Plaintiff’s submissions dated 1st July, 2026, Counsel contended that the court should not issue an order compelling the Plaintiff to produce documents which are not within his possession. That upon receipt of the Defendant’s request for particulars, the Plaintiff filed an application which sought orders for the 1st Interested Party to produce the documents requested for, which orders had since been complied with. Counsel relied on the authorities annexed to the Plaintiff’s list dated 1st July, 2026. 19. The sole issue for determination is whether Defendant/Applicant has demonstrated merit in the application for orders compelling the Plaintiff to supply the documents particularized under prayer 1 thereof. 20. Section 22 of the Civil Procedure Rules provides as follows:- **Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party—** * 1. **Make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;** 2. **Issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;** 3. **Order any fact to be proved by affidavit.** 1. Similarly, Order 2 Rule 10 (2) under which the application has been made sets out as follows: - **‘The court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the court thinks just.’** 1. From the above provisions of the law, it is undoubtedly clear that it is within the discretion of this Court to issue orders which aid a party in obtaining information which is sufficient to particularize the Plaintiff’s claim. Orders made are necessary to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes and this is the overriding objective under Section 1A of the Civil Procedure Act. 2. At paragraphs 6 and 7 of the Plaint, the Plaintiff purports that the suit property was allotted to him by the 2nd and 3rd Interested Parties and that the 1st Interested Party subsequently issued a title deed in his favour. In his response to the application, the Plaintiff averred that upon being served with the Defendant’s request for particulars, he filed an application seeking the Interested Parties to be compelled to produce all the orders relating to the suit property. 3. The Plaintiff contended that he had furnished the Defendant with all the documents in his possession and that the documents sought herein are not within his custody. 4. Clearly, the Plaintiff has produced the documents he feels are necessary to establish his claim. Again, he has diligently sought the production of the official documents relating to the suit property from the Interested Parties who have since filed a further list and bundle of documents dated 2nd October, 2025. 5. The objective of discovery was reiterated by Justice F. Tuiyott (as he then was) in **Concord Insurance Company Limited (Under Statutory Management) v NIC Bank Limited [2020] eKLR** wherein the learned Judge held as follows: - ***“21. One object of this Section is to avoid trial by ambush and to ensure that all material relevant to the just and fair determination of a dispute can be availed to all parties and the Court in good time. As stated by Gikonyo J in ABN Amro Bank N.V v Kenya Pipeline Company Limited [2014] eKLR (a case cited by counsel for Concord), the provisions serve a useful purpose. The Judge held;*** ***“Discovery as a compulsory disclosure, at the request of a party, of information that relates to the litigation in a civil suit is provided for in section 22 of the Civil Procedure Act and Order 11 rule 3(2) of the Civil Procedure Rules, and given the nature of discovery, I would class it as a means of access to information in the sense of Article 35(2) (b) of the Constitution. And as Justice Kimondo J stated in the Oracle productions case, I too conclude that “the true purpose of discovery is to level the litigation field, to expedite hearing, reduce costs and allow parties to gauge the case they will face at trial.” It, therefore, serves a higher objective as the enabler of fair hearing.”*** 1. Similarly, the Court of Appeal in **Chase Bank (Kenya) Limited v Cannon Assurance (K) Limited [2019] eKLR** aptly held as follows:- ***“As stated earlier, discovery is a tool requiring an adverse party to disclose information that is essential for the preparation of the requesting party's case and/or to ascertain the existence of information that may be introduced as evidence at trial. The respondent was well within its rights to request the return of documents given to the appellant, presumably with the intent to introduce the documents as evidence at the trial which was yet to begin.*** ***The test for discovery is proof of possession and materiality of the information sought by the parties. This being the settled legal requirement and having been proved by the respondent in the present case, we find no inclination to interfere with the trial court’s decision.”*** 1. Clearly, the Plaintiff cannot be compelled to produce documents which admittedly, are not within his possession without causing severe hardship. In the premises, the Defendant ought to formulate his defence in the manner which best responds to the claims pleaded in the Plaint. In any event, each party will have a chance to substantiate their respective claim within the requisite standard of proof. 2. In the end, the application is devoid of merit. It is hereby dismissed costs to the Plaintiff/Respondent. It is so ordered. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Shago for Mr. Mutunga for Plaintiff. Court assistant - Kilonzo