https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12409

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION CAUSE NO. 23 OF 2018** **IN THE MATTER OF THE ESTATE OF ALEXANDER MUCHEMI KIAGO (DECEASED)** **MONICAH MUMBI KIAGO……………………………….......APPLICANT** **-VERSUS-** **JOHN KIAGO MUCHEMI……………………………...1ST RESPONDENT** **JOHN WACHIRA KIAGO………………………..……2ND RESPONDENT** **CHRISTOPHER KIAGO MUCHEMI…………….…..3RD RESPONDENT** **WINROSE WACHUKA MUCHEMI………………....4TH RESPONDENT** **CATHERINE WANGECHI MUGO…………………..5TH RESPONDENT** **BEATRICE WANGECHI WAINAINA…………..….6TH RESPONDENT** **JOSEPH WAHOME MUCHEMI……………………..7TH RESPONDENT** **EUNICE WAIRIMU WAMBUGU…………………...8TH RESPONDENT** **JOYCE KARUNGARI MUCHEMI…………….……9TH RESPONDENT** **PHYLIS NJOKI MUCHEMI………………….…….10TH RESPONDENT** **RULING** 1. The 1st Administrator **JOHN KIAGO MUCHEMI** filed in this Court the Notice to produce dated **2nd February 2026**. 2. The 2nd and 3rd Administrators/Respondents filed Grounds of Objection dated **11th February 2026**. The Applicant/Respondent **MONICAH MUMBI KIAGO** filed a Reply dated **10th February 2026** opposing the Notice to produce. 3. The matter was canvassed by way of written submissions. The 1st Administrator filed the written submissions dated **18th March 2026**, the 2nd and 3rd Administrators relied on their written submissions dated **20th April 2026** and the Applicant filed the written submissions also dated **20th April 2026**. **BACKGROUND** 4. The Applicant had filed in this Court a Summons for revocation of Grant dated **9th November 2022**. The court directed that the summons be heard by way of oral evidence. The hearing commenced on **5th November 2025**. During the course of that hearing the 1st administrator filed the Notice to produce dated **2nd February 2026** seeking production of the following documents. **a) M-PESA statement of account for 0721684536 INO Monica Mumbi Kiago for the periods running from September 2021 to date.** **b) Bank statement of account for ABSA Account 0278443299 INO Monica Mumbi Kiago for the periods running from September 2021 to date.** **c) M-PESA statement of account for 0728270536 INO Christopher Kiago Muchemi for the periods running from September 2021 to date.** **d) Bank statement of account for NCBA Account 5075370013 for the periods running from September 2021 to date.** **e) M-PESA statement of account for 0724505936 INO the Late Alexander Muchemi’s MPESA number for the periods running from 18th December 2010 to date/until closure thereof.** **f) All bank account statements held INO Late Alexander Muchemi at ABSA and Cooperative Bank for the period running from December 2010 to date/until closure** **thereof.** **g) NSSF Account statements INO the Late Alexander Muchemi for the period running from 18th December 2010 to date.** **h) Original Logbooks for MV REG. Nos. KBB 852Z and KAK 366E.** **i) CDSC Account statements of the dividends receivable from the shares held in:** **(i) Kenya Airways.** **(ii) National Bank of Kenya** **(iii) Kengen** **(iv) Cooperative Bank Shares under CDSC** **000001168901** **(v) Safaricom Shares under CDSC Account No. BBC/C-** **000001168901 – L1-0** **j) The Original Title documents for Property Title Numbers:** **i. Nyahururu Municipality Block 2/54. (Including the sale agreement and all the transfer documents to Alice Wambui Wanyoike)** **ii. Nairobi 79/41 BuruBuru (With Rental Income Receivable in ABSA Account mentioned in (5) above and managed by Monica Mumbi & Christopher Kiago Muchemi.** **iv. LR No. 3671/13/V-Rumuruti Town (With Rental Income Receivable and managed by Monica Mumbi & Christopher Kiago Muchemi.** **v. Laikipia/Marmanet/T/61-0.151 Ha** **vi. LR No. 6585/537 Nyahururu Town - 0.1350 Ha** **vii. LR No. 2362 (Port Rietz) Mombasa** **k) Unclaimed financial Asset statements of account for funds forwarded thereto.** 5. The 2nd and 3rd Administrators filed Grounds of Opposition wherein they stated as follows:- **a) That The Notice to Produce has been issued after the hearing of the application has already commenced, and is therefore a disguised attempt to reopen and conduct discovery mid-hearing, which is procedurally improper and prejudicial.** **b) Section 69 of the Evidence Act does not permit a party to introduce a notice to produce after the commencement of hearing without leave of the Court and upon sufficient cause being shown.** **c) The Notice to produce amounts to trial by ambush, as the respondents were not afforded an opportunity to address or prepare for the documents sought prior to the hearing.** **d) The Applicant has failed to demonstrate that:** **i. the documents sought exist;** **ii. the documents are in the possession, custody, or** **control of the Respondent;** **iii. the documents are relevant to the issue of revocation of grant or the alleged intermeddling set before the court for determination.** **e) The burden of proving intermeddling lies squarely with the Applicants in their respective applications. The Notice to Produce improperly seeks to shift the burden of proof to the recipients, contrary to sections** **107-109 of the Evidence Act.** **f) Succession proceedings are not strictly adversarial and are governed by the Law of Succession Act and Probate and Administration Rules, which do not provide for discovery in the manner attempted by the Applicant.** **g) Allowing the Notice to produce at this stage would occasion undue prejudice to the recipients and offend the principles of fairness and natural justice.** 6. In her Response to the Notice to produce the Applicant stated that she was not in a position to produce the cited documents as the same were not in her possession and/or control. That the production of said documents would breach the Applicants right to privacy and would be prejudicial to the fair trial which is already at an advanced stage of hearing. 7. The Applicant further averred that the Notice to produce was vague and oppressive as it failed to specifically identify with reasonable precision the documents required and did not indicate their relevance to the summons for revocation of grant. That coming as it did mid-trial the notice to produce is merely an attempt by the 1st administrator to cure gaps in their case. That the Notice is nothing more than a fishing expedition to cure a poorly prepared case. The applicant urges the court to dismiss the said notice. **ANALYSIS AND DETERMINATION** 8. I have considered the Notice to produce dated **2nd February 2026**, the replies filed thereto as well as the written submissions field by both parties. 9. **Section 69** of the **Evidence Act Cap 80 Laws of Kenya** provides as follows:- “**69. Notice to produce a document.** **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 a notice to produce it as is required by law or such notice as the court considers reasonable in the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases -** 1. **when the document to be proved is itself a notice;** 2. **when from the nature of the case, the adverse party must know that he will be required to produce it;** 3. **when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;** 4. **when the adverse party or his agent has the original in court;** 5. **when the adverse party or his agent has admitted the loss of the document;** 6. **when the person in possession of the document is out of reach of, or not subject to, the process of the court;** 7. **in any other case in which the court thinks fit to dispense with the requirement.”** 10. A close reading of **Section 69** makes it clear that the real intent and import of this provision of the law is to enable a party in possession of secondary evidence to rely on it as an exception to the general rule in **Section 67** of the Evidence Act which requires that all documents must be proved by primary evidence. **Section 69** presupposes that the person issuing the notice to produce is in possession of the secondary evidence e.g photocopies whilst the recipient of the notice is in possession and/or control of the primary evidence. 11. In the case of **CONCORD INSURANCE LIMITED (Under statutory management) -vs- NIC BANK LIMITED 2022 eKLR**, the court held as follows regarding a Notice to produce. **“As would be explicit its intent and purpose is to enable a party in possession of secondary evidence to rely on it as an exception to the general rule of section 67 of the Evidence Act that documents must be proved by primary evidence. The provision presupposes that the person issuing the notice is in possession of the secondary evidence and the recipient of the notice is** **in possession or control of the primary evidence.”** 12. The 1st Administrator has not claimed much less demonstrated that he is in possession of the secondary evidence e.g copies of the documents he has requested in the Notice. As such the Notice amounts to nothing more than a fishing expedition on the part of the 1st administrator. 13. This Notice to Produce also fails for another reason. The notice to produce is brought under **Section 69** of the **Evidence Act.** Succession proceedings are ‘*sui generis’* and are governed the Law of Succession Act and Rules. **Rule 63** of the **Probate and Administration** **Rules** provide as follows: **(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.) shall apply so far as relevant to proceedings under these Rules.** **(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation** **of these Rules.** 14. In the case of **Priscilla Vugutsa Kamaliki vs Mary Runyanyi Ochieng [2016] eKLR Hon. Lady Justice Sitati** (retired) stated as follows:- **“The first issue for this court to determine is whether the instant application is properly before the court. The application is expressed to be brought under section 1A, 1B, 3, 3A and 63 (e) of the Civil Procedure Act, order 40 rule 4 and order 51 rule 1 of** **the Civil Procedure Rules. It is worth noting that the Law of Succession Act is a self-contained Act and provisions of the Civil Procedure Act, unless specifically imported into it are not applicable. A look at rule 63 of the Law of Succession Act reveals that the provisions under which the present application is brought are not some of the provisions imported into the Law of Succession Act. What this means therefore is that the instant application is incompetent for want of form and is therefore fit for striking out.”** 15. **Section 69** of the Evidence Act has not been imported into the law of succession Act under **Rule 63** of the Probate and Administration Rules. Accordingly the said Notice to Produce is incompetent and is for striking out. 16. In conclusion I find no merit in this Notice to produce. The same is dismissed in its entirety. Each party to bear their own costs. **Dated in Nyeri this 31st day of July 2026.** **…………………………** **MAUREEN A. ODERO** **JUDGE**