https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9115

Osahan v Helicopters International Ltd (Commercial Case E001 of 2021) [2026] KEHC 9115 (KLR) (Commercial and Tax) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 9115 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E001 of 2021 MN Mwangi, J June 12, 2026 Between Bharminder Singh Osahan Plaintiff and Helicopters International Limited Defendant Ruling 1.The plaintiff filed a Notice to Produce dated 8th November 2024, requiring the defendant to produce evidence of investment in the defendant company from 2012 to 2017, audited account statements of the defendant company from 2012 to date and current manuals approved by the Kenya Civil Aviation Authority. 2.In opposition to the said Notice to Produce, the defendant filed a replying affidavit sworn on 10th February 2025 by Mr. Mandeep Singh Osahan, a Director of the defendant company. He averred that the purpose of a Notice to Produce is for discovery, which is intended to ensure that all documents necessary for the just determination of a suit are made available and not as a fishing expedition. He deposed that it is settled law that discovery will not be granted for irrelevant allegations, for claims not pleaded, or to enable a party to frame a new case. Mr. Mandeep further deposed that the plaintiff’s claim, as set out in the plaint dated 24th November 2020, is that he was engaged as a partner, shareholder, Technical Director, and in other managerial roles and that he was promised 40% shares in the defendant company, which were not allocated, forming the basis of a claim of USD 240,000.00, for services rendered and reimbursement of flight expenses. 3.Mr. Mandeep averred that the onus of proving the alleged engagement and expenditure rests on the plaintiff, who is expected to provide evidence of any Agreement and the expenses incurred. He contended that the documents sought relate to the internal operations of the defendant company and industry regulation, and are neither necessary nor relevant to proving the plaintiff’s alleged Agreement or expenditure. He averred that the documents do not qualify as secondary evidence under Sections 66 & 69 of the Evidence Act, as secondary evidence must be in the possession of the party seeking it, even if not in original form, and the plaintiff has failed to provide copies or demonstrate their relevance. Mr. Mandeep asserted that the Notice to Produce herein, is an unfounded attempt to investigate the defendant’s internal affairs, thus it ought to be struck out. 4.In a rejoinder, the plaintiff filed an affidavit sworn on 2nd May 2025 by Mr. Bharminder Singh Osahan, the plaintiff herein. Mr. Bharminder averred that the defendant is deliberately frustrating the course of justice by refusing to disclose material facts and produce relevant documents. He contended that the defendant had not provided any credible evidence to refute his involvement in the company, relying instead on unreliable and biased witness statements. He further averred that the defendant had also failed to counter his evidence of travel, expenses, and independent witness accounts showing his contributions to making the company trade-worthy. 5.Mr. Bharminder stated that the dispute in this matter concerns his compensation for work performed, reimbursement of expenses and investment in the company from 2012 to 2017, which can be verified by company documents under the defendant’s control, and that his requests for discovery are reasonable. He further stated that the defendant had no turnover prior to 2017, when he facilitated regulatory approvals, information that is both relevant and within the defendant’s knowledge. 6.The Notice to Produce was canvassed by way of written submissions. The defendant’s submissions were filed on 15th July 2025 by the law firm of Omusolo Mungai & Company Advocates. The plaintiff’s submissions were filed by the law firm of Mucheru Law LLP Advocates on 14th October 2025. 7.Mr. Gathu, learned Counsel for the plaintiff relied on the case of Oracle Productions Limited v Decapture Limited & 3 others [2014] KEHC 8658 (KLR), and submitted that the function of discovery is to provide parties with relevant documentary material before trial, enabling them to assess the strength or weakness of their cases, prevent surprise, and reduce litigation costs. He argued that the documents sought are central to the dispute, as the plaintiff claims to have contributed significantly to the defendant’s operations and regulatory approvals, and that the requested documents will assist the Court in fairly determining the dispute between the parties herein. 8.It was submitted by Counsel that pre-trial discovery is fundamental to litigation, noting that Order 11 of the Civil Procedure Rules governs discovery, Orders 4 & 7 require documentary evidence to be filed with pleadings and Order 14 empowers the Court to order production, impounding, and return of documents. He further submitted that contrary to the defendant’s position, the documents sought are specific, relevant and essential to the dispute. 9.Ms Kiiru, learned Counsel or the defendant submitted that the defendant acknowledges possession of the documents but asserts that the plaintiff has failed to demonstrate their existence, relevance, or necessity for the determination of his claim for USD 240,000.00, for alleged services and flight reimbursement. Counsel cited the provisions of Sections 66 & 69 of the Evidence Act and the case of Lunani & another (Suing as the Executors of the Will of the Late Stephan Lunani Walela) v Carlsberg International Limited & 4 others [2023] KEELC 22190 (KLR), and further submitted that a Notice to Produce requires proof that the original document exists and is in the possession of the adverse party, as non-existent documents cannot be compelled. 10.Ms Kiiru further relied on the case of ABN Amro Bank N.V v Kenya Pipeline Company Limited [2014] KEHC 8701 (KLR), and asserted that the plaintiff must identify the documents, the person holding them, and demonstrate their necessity for the exercise or protection of a right. She referred to the case of Rafiki Microfinance Bank Ltd v Zenith Pharmaceuticals Ltd [2016] KEHC 6627 (KLR), and stated that the documents sought are internal to the defendant and unrelated to proving the plaintiff’s alleged engagement or expenses. She contended that compelling the defendant to comply with the Notice to Produce would constitute a speculative, broad, and intrusive fishing expedition, contrary to the principles of fair trial and efficient case management. Analysis And Determination. 11.I have considered the plaintiff’s Notice to Produce dated 8th November 2024, the replying affidavit by the defendant, the affidavit by the plaintiff, and the written submissions by Counsel for the parties, the issue that arises for determination is whether the defendant should be compelled to produce the documents requested in the Notice to Produce dated 8th November 2024. 12.The law on discovery and production of documents is well settled. Discovery is intended to ensure that parties go to trial on an equal footing and that the Court has the benefit of all material necessary for the fair and just determination of a dispute. The Court’s power to order discovery and production of documents is anchored on Section 22(a) of the Civil Procedure Act, which provides that -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 -a.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; 13.A Court’s discretion with regard to a Notice to Produce has to be exercised judiciously, guided by principles of relevance, materiality, and possession or control of the documents sought. The Court of Appeal in the case of ABN Amro Bank N.V v Kenya Pipeline Company Limited [2019] KECA 499 (KLR), held as follows-The purpose of discovery is mainly to ensure that all documents or information necessary for the just determination of the suit are made available to all the parties as well as to the court. In Halsbury’s Laws of England, 4th Edition Volume 13 at paragraph 1 the function of discovery of documents is set out as follows:‘The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their relevant cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial. Each party is thereby enabled to see before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him, to eliminate surprise at or before the trial relating to the documentary evidence and to reduce the cost of litigation.’ 14.In opposition to the plaintiff’s Notice to Produce dated 8th November 2024, the defendant contended that the documents sought relate to its internal operations and regulatory compliance and are neither necessary nor relevant to proving the plaintiff’s claim for engagement or expenditure. A perusal of the plaintiff’s plaint dated 24th November 2020 reveals the plaintiff’s claim is that he was engaged by the defendant as a partner, shareholder, Technical Director, and key personnel from 26th June 2014 to February 2018, during which time he provided technical services, offsite support, and remedial actions critical to the defendant’s operations, incurred expenses totaling Kshs.128,953.00 and GBP 5,911.11, and was promised a 40% shareholding in the defendant company, which he was never allocated. 15.The plaintiff averred that despite performing the agreed services, the defendant failed to honour the Shareholding Agreement, sold 30% of the company to a third party and has refused to pay his invoice of USD 240,000.00 for services rendered. Consequently, the plaintiff filed this suit claiming USD 240,000.00 for services rendered and Kshs.128,953.00 & GBP 5,911.11 for the flight tickets he purchased, while on the defendant’s assignment. 16.Pursuant to the provisions of Sections 107, 108 & 109 of the Evidence Act, the onus to prove the alleged engagement and expenditures rests on the plaintiff, who is expected to adduce evidence of any Agreement and expenses incurred. 17.The plaintiff in support of its Notice to Produce dated 8th November 2024, asserted that the defendant has frustrated the course of justice by refusing to disclose material documents, including those demonstrating investment and contribution to regulatory approvals. The plaintiff contended that the defendant had no turnover prior to the year 2017 and that the requested documents are relevant and within the defendant’s control. 18.This Court notes that although the defendant does not deny the existence of the documents sought by the plaintiff, the latter has not demonstrated a clear link between the said documents and the core issues in dispute, namely, the alleged private engagement, services rendered and flight tickets purchased. Although the plaintiff contends that the documents are relevant, they largely relate to internal company operations and regulatory approvals, which in my considered view are not central to proving the specific facts alleged in the plaintiff’s claim. 19.This Court is also mindful that discovery is not meant to be a fishing expedition. Further, the Court of Appeal in the case of ABN Amro Bank N.V v Kenya Pipeline Company Limited (supra), emphasized that discovery of documents is limited to those documents that are relevant and necessary for the fair determination of the issues in controversy. In the circumstances, this Court is persuaded that the plaintiff’s Notice to Produce dated 8th November 2024 is overly broad, speculative, and intrusive. It does not therefore satisfy the threshold of relevance or necessity required by law. The request is effectively a fishing expedition into the defendant’s internal affairs, contrary to the principles of fair trial and efficient case management. 20.In light of the foregoing, I am not persuaded that the interests of justice favour compliance with the plaintiff’s Notice to Produce dated 8th November 2024. 21.Accordingly, this Court finds that the plaintiff’s Notice to Produce dated 8th November 2024 is not merited and it is hereby dismissed with costs to the defendant.It is so ordered. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 12TH DAY OF JUNE 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of :-Mr. Onyango h/b for Mr. Gathu for the plaintiff/applicantMs Nyakundi h/b for Ms Kiiru for the defendant/respondentMs Julia – Court Assistant.