[2005] KEHC 560 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 714 of 2003

NATIONALS SOCIAL SECURITY FUND

BOARD OF TRUSTEES……………..…………………….….……..…….PLAINTIFF

VERUS

DR.SALLY KOSGEI…………………………………………….…..1ST DEFENDANT

GUARDIAN INTERNATIONAL LTD……………...……………….2ND DEFENDANT

RULING

This is an application expressed to be brought under Order X Rule 17 and Order L Rule 1 of the Civil Procedure Rules for an order that the 2nd Defendant do produce for inspection by the Plaintiff documents to prove that it obtained or acquired a valid title of L.R. NO.209/6439 Parklands Nairobi before transferring the same to the Plaintiff and if the 2nd Defendant defaults to comply with the order for inspection within fourteen (14) days of the order, the defence filed by the second Defendant and/or the First Defendant be dismissed or struck out and judgment be entered for the Plaintiff against the Defendants as prayed in the amended Plaint.

The reasons for the application are that the second Defendant has failed to respond to a notice to produce documents for inspection and that the said documents are essential for the determination of the crucial issue in dispute between the parties in this suit.

The application is supported by an affidavit sworn by one Said Juma Chitembwe the Plaintiff’s Corporation Secretary. The application is opposed and there are Grounds of Opposition filed by the Defendant’s Advocates.

The application was canvassed before me on 9. 11. 2005 by Mr. Oyatsi Learned Counsel for the Plaintiff and Mr. Okwach, Learned Counsel for the Defendants. Substantiating the grounds for the application Counsel for the Plaintiff submitted that it was the Plaintiff’s case that the 2nd Defendant did not have a good title to the suit property and did not therefore pass a valid title to the Plaintiff. According to the Plaintiff the former owners of the suit property Kenya Railways Corporation could only dispose of the suit property with the consent and conditions agreed by the Government. The consent is one of the documents the Plaintiff wished to inspect and had not been produced by the Defendants for such inspection. Counsel referred to Gazette Notice No.2443 which declared the suit property a national monument and contended that the Government still considered the suit property as Kenya Railways property even after the property had been transferred to the 2nd Defendant. It is not possible according to the Plaintiff that the same Government could have consented or approved the disposal of the suit property to the 2nd Defendant. Hence this application. Reliance was placed upon the case of

V.R. MANDEVIA –V- THE STANDARD BANK OF SOUTH AFRICA (1944) 21 P.3 for the proposition that inspection will be ordered if the document sought to be inspected would assist he party requesting for inspection whether or not the Applicant was a party to the document and whether or not its contents had been communicated to him.

There was also reliance placed upon the case of L.N. LAKHANI & ANOTHER –V- V.P.BHOJANI (1950) 17P.27 for the proposition that where one party has a document in his possession in which both parties have a common interest the other party is entitled to inspection of the document at common law independently of the rules.

Counsel for the Defendants on his party argued that the application as framed is incompetent as it seeks production of unidentified documents to prove that the 2nd Defendant acquired a good title to the suit property. In Counsel’s view the documents should have been identified. Counsel further contented that proof of documents is for the trial Judge and not in an application of such as the one at hand.

With respect to the alleged consent of the Government to the sale by Kenya Railways to the 2nd Defendant, Counsel submitted that the same had not been mentioned in the Notice to produce. Counsel submitted that the cases relied upon by the Plaintiff dealt with Notices where specific documents had been sought which the Plaintiff in this case has not done.

Reliance was placed upon the case of the MOTOR MART & EXCHANGE LTD –V- THE STANDARD INSRURANCE CO. LTD: (1960) E.A.616 where an application for discovery was found defective because the specific documents had not been specified.

There was also reliance placed upon the case of KAHUMBU –V- NATIONAL BANK OF KENYA LTD (2003) 2E.A. 475 which involved an application for discovery of specific documents.

Finally reliance was placed upon the case of OLUOCH –V- CHARAGU (2003) 2 E.A. 649 where Nyamu J. held that the omission to prove possession or power and the relevance of the documents to the issues in question as stipulated under Order X Rule 11 was fatal to an application to produce documents.

It was Counsel’s contention that the Plaintiff’s Notice of Motion is without merit and should be dismissed with costs.

In a brief reply Counsel for the Plaintiff submitted that the cases cited by Counsel for the Defendants dealt with applications for discovery and are therefore irrelevant. Counsel maintained that the Plaintiff is still entitled to inspection despite the joinder of issues.

Having heard the rival submissions made on behalf of the Plaintiff and the Defendants, I take the following view of the matter. Order X Rule 17 (1) and (2) reads:-

“17(1) where the party served with a notice under rule 15 omits to give such notice of a time for inspection, or objects to give inspection, or offers inspection elsewhere than at the office of his advocate, the court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit.

Provided that the order shall not be made when and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

(2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents shall be founded upon an affidavit showing of what documents inspection is sought that the party applying is entitled to inspect them and that they are in the possession or power of the other party; and the Court shall not make such order for inspection of such documents when and in so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.”

I have perused the Notice served upon the 2nd Defendant dated 3. 8.2005. It requires of the 2nd Defendant to produce for the Plaintiff’s inspection documents referred to in paragraph 7 VIII (d) of the Amended Defence dated 11. 7.2005. The notice describes the documents in the following terms:-

(a) The documents to prove the valid Title of L.R. No. 209/6439 Nairobi acquired by the second Defendant from the second Defendant from Kenya Railways Corporation.”

The 2nd Defendant has averred in paragraph 7 VIII (d) of its amended defence as follows:-

“7(VIII) With regard to para 8 (3) (f) (g) (h) and (i) of Amended Plaint it states that it sold the suit property to the Plaitniff pursuant to the Agreement for sale dated 8 February 1996 and:

….(d) it had acquired and transferred a valid title”

It is clear that the said Notice to produce for inspection did not specify the documents to be produced. It is obvious that acquiring a valid title presupposes the existence of certain documents. The documents may vary from a few documents to numerous documents. I do not think the function of interrogatories, Discovery and Inspection is to give an open chance to a party to seek proof of the case of the other side. In my view the Plaintiff in the case at hand by its notice was seeking proof of the Defendants’ pleading in paragraph 7 VIII (d) of the amended defence which is outside the purview of inspection. The Plaintiff should know essential documents necessary for the creation of a valid title and should have adequately and specifically identified them.

From the submissions of Counsel for the Plaintiff and the supporting affidavit of Said Juma Chitembwe aforesaid, the document which the Plaintiff was interested in is disclosed as consent of the Government to the disposal of the suit property to the 2nd Defendant by Kenya Railways Corporation. According to Counsel for the Plaintiff the said consent is a prerequisite to any disposition of any building or land by Kenya Railways Corporation under Section 13 (2) (h) of the Kenya Railways Corporation Act Chapter 397 Laws of Kenya.

Although the document was not identified in the Notice served upon the 2nd defendant, I propose to address the Plaintiff’s application as though the said document was sufficiently identified. Before inspection can be ordered of any document the Applicant must establish the following:

1) That he served a valid notice under Rule 15 of Order 10 of the Civil Procedure Rules.

2) That the party served has omitted to give notice of time for inspection or has objected to give inspection as provided in Order X Rule 16 and 17 (1).

3) By affidavit that he is entitled to inspect the document.

4) By affidavit that the document is in the possession or power of the other party.

I have perused the affidavit of Said Juma Chitembwe sworn on 5. 9.2005 aforesaid. There is no deposition that the said consent is in the possession or power of the 2nd Defendant. In fact the deposition of the said Said Juma Chitembwe in paragraph 16 of the said affidavit suggests that the Government may not have granted consent or approval to Kenya Railways Corporation to sell the suit property.

It is clear from the above considerations that the Plaintiff has not satisfied the prerequisites for the grant of an order for inspection. The cases relied upon by the Plaintiff do not advance the Plaintiff’s case. In the case of V.R. MANDEVIA –V- THE STANDARD BANK OF SOUTH AFRICA LTD (SUPRA,) inspection was sought of a specific document which was admitted to be in the possession of the Defendant and in the case of L.N. LAKHANI & ANOTHER –V- V.P. BHOJANI (SUPRA),the order for inspection was in respect of specific documents namely books of accounts and balance sheet which were in the possession of the Defendant.

The cases relied upon by the Defendants are only of persuasive value. I am however of the view that whether what is sought is discovery or inspection, the Applicant must adequately specify the documents he is interested in. In this regard I agree with the observation made by the Court of Appeal in WHITE –V- SPAFFORD & CO 1, (1901) 2 K.B. 241 which was cited in the case of the MOTOR MART AND EXCHANGE LTD –V- THE STANDARD GENERAL INSURANCE CO. LTD (SUPRA) viz:

“It is not sufficient to make a general affidavit based on a priori reasoning that certain classes of documents must be in his opponent’s possession or power.

“The discovery sought must be of a species not genus.”

Nyamu J. held the same view in OLUOCH –V- CHARAGU (SUPRA). The Learned Judge held that the omission to prove possession or power and the relevance of the documents to the issues in question was fatal to the Plaintiff’s application for discovery.

The upshot of the matter is that the Plaintiff’s application dated 5th September, 2005 is dismissed with costs to the Defendants.

DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF NOVEMBER 2005.

F. AZANGALALA

JUDGE