[2021] KEHC 12659 (KLR)
The court found that the applicants failed to comply with the mandatory requirements of Order 3 of the Civil Procedure Rules by not listing the Land Registrar and Kenya Commercial Bank as witnesses or providing their statements at the time of filing suit. The court further held that the documents and evidence sought...
Source-derived case information.
- Citation
- [2021] KEHC 12659 (KLR)
- Parties
- Applicant: Joel Oguk Muluma Boi; Applicant: Bernard Ngala Chweya; Applicant: Maruice Ariro Orimbo; Respondent: Victor Otieno Olewe t/a M/s Victor Otieno & Associates Advocates; Respondent: Ultimate Engineering; Interested Party: Equity Bank
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 128 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs to the respondents
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Witness Summons, Evidence Production, Privileged Information
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Oguk Muluma Boi
Applicant
Bernard Ngala Chweya
Applicant
Maruice Ariro Orimbo
Applicant
Victor Otieno Olewe t/a M/s Victor Otieno & Associates Advocates
Respondent
Ultimate Engineering
Respondent
Equity Bank
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicants are entitled to orders summoning the Land Registrar and Kenya Commercial Bank to produce documents and evidence in relation to the suit property and loan agreement.
- 2 Whether the application complies with the requirements of Order 3 of the Civil Procedure Rules regarding witness statements and lists.
- 3 Whether the information sought is privileged or otherwise protected under the Evidence Act.
Ratio Decidendi
The court found that the applicants failed to comply with the mandatory requirements of Order 3 of the Civil Procedure Rules by not listing the Land Registrar and Kenya Commercial Bank as witnesses or providing their statements at the time of filing suit. The court further held that the documents and evidence sought had no clear nexus to the issues for determination as set out in the Originating Summons. Additionally, the court determined that the information sought from the Land Registrar and the bank was either publicly accessible without compulsion or protected by privilege under the Evidence Act. The application was deemed to be a fishing expedition for evidence, which is not...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 18th August, 2020 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NARIOBI
HCC NO. 128 OF 2019
JOEL OGUK MULUMA BOI....................................1ST APPLICANT
BERNARD NGALA CHWEYA.................................2ND APPLICANT
MARUICE ARIRO ORIMBO..................................3RD APPLICANT
VERSUS
VICTOR OTIENO OLEWE T/A
M/S VICTOR OTIENO &
ASSOCIATES ADVOCATES................................1ST RESPONDENT
ULTIMATE ENGINEERING..................................2ND RESPODNENT
EQUITY BANK..................................................INTERESTED PARTY
RULING
This suit was initiated by way of Originating Summons filed on 21st May, 2019. There are two substantive issues set out. The first is a prayer to order the respondents to honour a professional undertaking to the applicants and remit a sum of Kshs. 16,600,000/= . The second is a prayer to order the respondents to remit to the applicants a sum of Kshs. 16,600,000/= being the balance of the agency fees as soon as the balance of the purchase price is released to them by the interested party and or any financial institution who are partly financing the sale transaction.
Subject to directions of the court, such proceedings are subjected to directions where the contesting parties may elect to proceed by way of affidavit evidence and if need be, oral evidence. Whatever the case, litigants are supposed to ensure, at the filing of the suit, full compliance with Order 3 of the Civil Procedure Rules.
In the instant case, the applicants gave a list of documents to be used during the trial. There was no list of witnesses or witness statement as contemplated by Order 3 of the Rules aforesaid.
This is not the first time the court has been called upon to make a ruling relating to the dispute herein. On 19th December, 2019 the court delivered a ruling dismissing the applicants’ application to compel the respondents to honour a professional undertaking said to have been given on 27th August, 2018.
There is now before me an application by way of Notice of Motion dated 18th August, 2020 under Order 16 Rules 5,6 and 8 of the Civil Procedure Rules, seeking orders that summons be issued to the Land Registrar to produce the latest entry in LR No. 3734/281 and to the Kenya Commercial Bank to produce the loan agreement secured by the suit property, and statement of account showing how the loan proceeds were applied. The application is opposed and there are grounds of opposition dated 13th July, 2020 to that effect.
I have already observed that a party is bound to comply with Order 3 of the Civil Procedure Rules at the time of filing a suit. The two parties sought to be summoned are not part of the list of witnesses neither are their witness statements on record. I have looked at the Originating Summons and nowhere in the issues set for determination is any pointer towards the two witnesses sought to be called.
In any case, in respect of the Land Registrar, any person may apply and make a search at the Lands Registry and be issued with a certificate of search, to confirm any entries in the said registry. Whatever the case, there must be a nexus between the pleadings and the information sought to be introduced. Even then, the Registrar being a public officer shall not be compelled to do so due to conditions set out in Section 132 of the Evidence Act.
In respect of the second party, that is KCB, no court may not allow such a prayer for reasons that, it will be breach of the fiduciary relationship between the parties to the loan agreement. In fact, such evidence falls within Part II of the Evidence Act relating to privileged information. In that case Section 140 of the Evidence Act is instructive. I know this court has the power to order a bank witness to prove matters in dispute but in the instant case, there is not any special cause to give such an order.
Both the Land Registrar and KCB are not parties to the present dispute and therefore the order sought by the applicants is likely to cause prejudice to the said parties, who in any case have not been identified as having played any part in the transaction at the root of this dispute. See Thomas Ngarachu Ngugi & 5 Others v Wilfred Wanyoike & 6 Others (2019) e KLR, Dahir Sadik Ausaad v Modogashe Construction Ltd & 3 Others (2016) e KLR.
Evidence is the foundation of any cause of action. A party does not file a suit and then embark on the exercise of looking for evidence. It is not hard therefore to agree with the submissions by the respondents that, in filing this application, the applicants are on a fishing expedition.
This court cannot countenance such an exercise for reasons that, such orders may not be granted without causing prejudice not only to the witnesses sought to be called, but also the respondents. This application therefore dismissed with costs to the respondents.
Dated, signed and delivered at Nairobi this 25th day of February, 2021.
A. MBOGHOLI MSAGHA
JUDGE