https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8674

Shah v Shah t/a John Cumming and Company & another (Constitutional Petition 14 of 2020) [2026] KEHC 8674 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8674 (KLR) Republic of Kenya In the High Court at Kisumu Constitutional Petition 14 of 2020 A Mabeya, J June 19, 2026 Between Shakunt Rajnikant Shah Petitioner and Bhupendra Motichand Shah t/a John Cumming And Company 1st Respondent Prashant Rajnikant Shah 2nd Respondent Ruling 1.The petitioners moved this court vide an Amended Petition dated 31/8/2020 seeking a declaration of a trust over forty-five (45) shares in Hardware Dealers Limited held by the 2nd respondent. The 1st respondent denied the averments made by the petitioner in an affidavit he swore on the 20/1/2021. 2.When the matter came up for hearing on the 2/3/2026, Mr. Otieno, Learned Counsel for the respondents informed the Court that the respondents would be objecting to the production of the recording evidence introduced by the petitioner. 3.The objection was formalized vide a Notice dated 5/3/2026 raising eight (8) grounds to wit; that the said evidence constituted new evidence not originally annexed to the affidavit in support of the amended petition and whose facts were not pleaded, that the petitioner had vide an application dated 22/3/2021 sought to have the said recording exempt from the provisions of the Data Protection Act of 2019 but had the same dismissed thus the recording violated Article 31 of the Constitution, that the petitioner subsequently sought to have the proceedings in camera under Section 51 (2) of the Data Protection Act to facilitate the production of the recording but the application was dismissed and that by admitting the documents listed in the affidavit of documents this would alter the petition from a petition thus divesting the court of jurisdiction. 4.Counsel for both parties submitted in favour of their respective positions. Mr. Otieno for the respondents submitted that the documents sought to be introduced vide paragraphs 2.5, 2.6,2.7,2.8 & 2.9 of the affidavit of documents sworn on the 1/7/2025 by the 1st petitioner violated the Mutunga Rules, specifically Rule 11, as they were never pleaded in the Petition. 5.That the recording sought to be admitted violated the respondent’s right to privacy under Article 31 of the Constitution and the Data Protection Act No. 24 of 2019. That the petitioner processed data without an order as provided for under Section 51 of the Data Protection Act, which data they now seek to introduce in Court as new evidence and that admitting the evidence would alter the petition changing the petitioner’s case. 6.Mr. Okero SC for the petitioner submitted that the affidavit of documents filed on the 1/7/2025 was pursuant to leave granted by Court on the 17/6/2025. That the material facts in his client’s petition was the existence of a trust over shares in the 1st respondent which was disclosed at a meeting held on the 11/8/2020 which evidence the petitioner sought to adduce. That evidentiary facts need not be pleaded as this would offend the rule on pleadings. 7.That his client’s Motion dated 22/3/2021 wherein he sought an order under Section 51 (1) (C) of the Data Protection Act was made on misapprehension that it was necessary. That Sections 28,30 and 45 of the Data Protection Act limit the right to privacy under Article 24 of the Constitution and that in any case, at the time the recording was made, the Data Protection Act had not become fully operational as the Regulations commenced on the 14/1/2022. 8.That the respondents must set out how their privacy had been breached which requires an interrogation of the evidence upon its submissions as no facts have been laid before court to challenge the veracity of the recording. That the 1st respondent attended the meeting of 11/8/2020 and participated willingly thus the audio recordings were admissible. 9.That Article 50 (4) requires weighing the position of both parties and as the purpose of the recording is to oust that there was disclosure of the existence of a trust denial of it amounts to a fraudulent concealment and would be detrimental to the administration of justice. 10.In rejoinder, Mr. Otieno submitted that the additional information should have found basis in the affidavit in support of the petition. That there was no agreement on recording of the proceedings sought to be introduced thus this was a violation of privacy. 11.I have considered the objection by the petitioner as well as the submissions made by learned counsels for both parties. The only issue for determination is whether this Court ought to allow the production of the documents listed in the petitioner’s Affidavit of Documents sworn on the 1/7/2025. 12.The respondents’ objection is simply that the additional evidence sought to be introduced was never part of the original Petition or subsequent Amended Petition and that in essence, alters the petitioner’s case as it is not anchored in any pleadings. Further, that the recordings were obtained without the respondent’s permission it thereby violating the respondent’s constitutional right to privacy. 13.On his part, the petitioner contended that the additional evidence was introduced pursuant to leave granted on the 17/6/2025 and as such it is properly before Court, that the respondents willingly participated in the meeting where the recording was made, that in any case the Data Protection Act limits the right to privacy under Sections 28, 30 and 45 and that the additional evidence is anchored on his pleadings as it sheds light on his assertions that there was a trust over the shares as alleged, a claim made in the petition. 14.I have considered the record; the respondents’ initial complaint against the evidence by the petitioner is that the same is not anchored on the petition and that it has been adduced without leave of Court, that the said evidence being in possession of the petitioner ought to have been annexed to the amended petition as provided in Rule 11 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules also known as the Mutunga Rules. 15.On this point, I am in agreement with the petitioner that prior to the hearing, this Court on the 17/6/2025 granted the parties leave to file affidavit evidence in support of their respective cases. This court further clarified these orders on the 29/9/2025 stating as follows;“In view of the Motion dated 8/8/2025, the court clarifies its directive of 17th June 2025 to the effect, the affidavit evidence directed is in the event parties required further and additional evidence than the one already on record. application is spent. Hearing date is retained.” 16.Based on this, it is thus evident that in filing the Affidavit of Documents dated 1/7/2025, the petitioner did not flout Rule 21 (2) of the Mutunga Rules that requires leave of court prior to filing additional evidence. 17.As to the alleged infringement of the Data Protection Act, that has not been demonstrated. The nature of the privacy infringed has not been demonstrated. The same can only be proved once the contents therein are fully disclosed at the hearing. 18.Having held as above, as to the nature of the additional evidence sought to be introduced, the details of its procurement and whether the same are in support of the petition, it is my considered view that at this preliminary stage of the proceedings, it would be premature to consider the same in light of having found that the said evidence is properly before this Court. These are intricacies that the parties can bring out in the full hearing and determination of the suit on merits. I hazard to comment on the same to avoid prejudicing either of the parties. 19.In the circumstances, I find that the objection dated 5/3/2026 is without merit and the same is dismissed. The matter is to proceed to full hearing with costs of this objection being in the cause.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF JUNE, 2026.A. MABEYA, FCI ArbJUDGE