https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12369

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI ANTI-CORRUPTION & ECONOMICS CRIME DIVISION ACEC SUIT NO. **E046** OF 2022 ETHIC & ANTI-CORRUPTION COMMISSION................................PLAINTIFF VERSUS DAVID KINYAE ISIKIA…………............................................. 1ST DEFENDANT DAVINKA SUPPLIERS AND GENERAL MERCHANTS LIMITED………………………………………2ND DEFENDANT WANGA-TECH GENERAL ENTERPRISES LIMITED………3RD DEFENDANT BRUCE ISIKA KINYAE T/A BRYCEN SMART INNOVATIONS………………………...….4TH DEFEMDANT AND NAOMI KATEE MUSEMBI.……………………….…1ST INTERESTED PARTY BERNARD OGWAGI ANUDO...……………………..2ND INTERESTED PARTY **RULING** A brief history of the matter from the time I took it over from Honourable Lady Justice L.M. Njuguna is necessary in order to set some parts of the record straight. On 19-11-2025, Mr. Wambugu holding brief for Miss Ochola for the plaintiff, Mr. Kiluva for the 3rd defendant and Mr. Nyamu for the 1st, 2nd and 4th defendants appeared before me and after going through the record, I made the following orders; 1. The matter shall start *de novo*. 2. The defendants shall identify any documents they will be opposing and for what reasons and make representations on the same by way of short written submissions within seven days. 3. Mention for directions and fixing of hearing date on 17-12-2025. When the matter came up for mention on 17-12-2025, Miss Ochola, Mr. Kiluva and Mr. Nyamu were present. Mr. Nyamu indicated that he had not filed submissions as he had not heard me directing that submissions be filed while Mr. Kiluva asked for seven more days to file. I then directed as follows; 1. The defendants shall comply with my directions dated 19-11-2025 within the next seven days this being the last extension. 2. Failure to comply, this court shall take it that the defendants are not opposed to production of any document listed in the plaintiff’s list of documents. 3. This matter shall proceed for hearing on 18th, 19th and 20th May 2026. Mr. Nyamu complied with the latter directions by filing his clients’ submissions dated 18th December 2025 while the plaintiff filed its submissions dated 10th March 2026. The other parties did not file any submissions on the issue and in that regard reference to defendants in this ruling would be deemed as reference to the 1st, 2nd and 4th defendants. The position of the production of the documents seems to have been dimmed as when the matter came for hearing on 18th May 2026, neither the court nor the parties addressed it. Instead, the parties addressed the court on the call by the defendants to have the matter start *de novo* following which the court reserved the ruling on the issue for today. This notwithstanding, this ruling combines the issues of the matter starting *de novo* and the production of the documents. I have read the submissions of the parties and it is clear to me that the objection to the production of documents is limited to documents appearing from pages 20 to 36 of the plaintiff’s bundle for the sole reason that the investigating officer was not the maker of the same. This is also borne from the objection Mr. Nyamu raised before Honourable Lady Justice L.M. Njuguna on 9-07-2025. These documents are in respect of particulars and identification of the 1st defendant and his associates mainly the directors of the 2nd, 3rd and 4th defendants. The source of the documents is the Business Registration Services and the Ministry of Interior and Coordination of National Government. The plaintiff has opposed the objection on two grounds. That is, the defendants did not raise objection to production of documents during pre-trials and that the documents are public documents which the investigating officer who is a public officer is competent to produce under Sections 79, 80 and 81 of the Evidence Act. I have looked at the record of the pre-trial proceedings conducted on 30-04-2024 before Honourable E.M. Nyakundi (DR). In the proceedings, the court identified and the parties confirmed the documents which each party had filed. There was no question or observation by any party on the mode or competency of any witness in producing any document. To the contrary, the case management checklist signed by the Deputy Registrar after the pre-trial conference shows that there would be no objection to admissibility of any statement or documents or part thereof. Pre-trial conferences or proceedings are not meant to be just a procedure or beautification of the court record. They are integral part of the court proceedings and meant to give clear road map of the process of litigation and notify the opposing party of the nature of objections to be expected. I do agree with the plaintiff’s submissions that the defendants do not have the luxury of objecting to production of documents at this stage as they failed to give such notice during pre-trial conference. Parties are of course at liberty to change positions during trial but the same bust be informed by reasonable grounds. The defendants have not told the court what would have made them to change their position on production of the documents and in my view, the objection is an afterthought and not unsustainable. In addition to the above, I do not consider the nature of the documents objected to as demanding attendance of the makers in order prove authenticity. The defendants will have an opportunity to rebut the contents of documents when they present their defence. The production or admission of documents in evidence does not mean that the court has given them an identified weight of their probative value. The Court of Appeal held in ***Chengo Kitsao Chengo v Umoja Rubber Products Ltd [2017] KECA 648 (KLR)*** that; *‘Indeed, the mere admission of documents into evidence does not render them credible, reliable or of probative value.’* The defendants have relied on Section 35(1) of the Evidence Act and submitted that the plaintiff did not demonstrate that the circumstances of this case fell within the proviso to that Section. The defendants have in my view read and interpreted that Section in isolation of other Sections of the Act. Sections of a Statute must be read in context and conjunction with others and a balance between them struck. This court considers the Section as complementary to others such as Section 35(2) and 35(5) the Act. A government is a corporate institution that does not belong to the officers acting in it as public officers come and go and demanding that each document from public officers be produced by the officers who authored it would be unreasonable. There must, in my view be special reasons to demand that a specific officer should produce specific documents. However, the court must consider each case on its special circumstances. The source of the documents is not in doubt. They are kind of documents which are available in public offices and unless the party objecting gives reasons to doubt their sources or authenticity, the court should not bog down the proceedings with requiring production of the same by specific public officers. In this case, the defendant’s sole reason for objection was that the investigating officer was not the maker which reason I do not find good enough to sustain the objection. Turning to the issue of the matter starting *de novo*, I do not see the need and I have not been shown the reason for revising my directions given on 19-11-2025 as stated earlier in this ruling. I made the orders after considering the circumstances under which the file found its way to my hands and the progress the plaintiff’s witness had made in his testimony. I do not see any prejudice in having the matter start *de novo* and my directions of 19-11-2025 on that issue shall stand. In conclusion, I make the following orders; 1. The defendant’s objection to production of documents appearing on pages 20 to 36 of the plaintiff’s bundle by the investigating officer is hereby overruled. 2. The hearing of the matter shall start *de novo.* 3. The costs herein shall be in the cause. Dated, signed and delivered at Nairobi this **29th** day of **July** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Ruling delivered in presence of; Miss Ochola for the plaintiff, Miss Esami holding brief for Mr. Nyamu for the 1st, 2nd and 4th respondent, Mr. Kiluva for the 3rd defendant, and Miss Naliaka holding brief for Mr. Omulloh for the 1st interested party and Mr. Omulama for the 2nd interested party.