https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8194

Mehta v Jos Management Ltd (Civil Appeal E378 of 2024) [2026] KEHC 8194 (KLR) (Commercial and Tax) (10 June 2026) (Judgment) Neutral citation: [2026] KEHC 8194 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Appeal E378 of 2024 BK Njoroge, J June 10, 2026 Between Shila V Mehta Appellant and Jos Management Limited Respondent (Being an Appeal arising from the Ruling of Honourable C. K. Cheptoo (Principal Magistrate) in CMCC E4056 of 2023 delivered on the 20th day of November 2024) Judgment 1.This judgment arises out of the decision delivered by Honourable C. K. Cheptoo (Principal Magistrate) in CMCC E4056 of 2023 delivered on the 20th day of November, 2024). The Trial Court rendered itself in respect to the application dated 12th August, 2024 as follows:“ConclusionThe application fails to establish that the requested documents are necessary for the just determination of the case, given the availability of the CR12 and the Letter of Authority. Furthermore, the Applicant has not demonstrated any prejudice they would suffer if the application is denied.The court finds no merit in the Applicant’s notice of motion application dated 12th August, 2024. The same is dismissed with costs to the Respondents.Hon. C. K. Cheptoo(Principal Magistrate)”Background Facts 2.The Appellant was a Defendant while the Respondent was a Plaintiff in the suit before the Trial Court. The Respondent did file a Supplementary List and Bundle of Documents dated 11th July, 2024. It attached a Letter of Authorization dated 16th March, 2023. The Appellant took issue with this letter of authorization. Its position being that when the Plaint was filed there were no documents filed to show this authority. 3.In short, this Court understands the Appellant to take the position that the suit ought not to stand. This is because it was filed absent any prior authorization or a resolution by the directors of the company. 4.The Applicant served the Respondent with a Notice to Produce dated 25th July, 2024. It sought the production of;1)The resolutions appointing Shantilal Devchand Shah and Ramniklal Lalji Shah as Directors of Jos Management Limited; and2)Notice filed with the Registrar of companies regarding their appointments. 5.This was followed by the filing of the Notice of Motion dated 12th August, 2024. It sought the following orders;a)Spent.b)Thatthis Honourable Court be pleased to issue an order directed at the Plaintiff in the Original Action and the 1st Defendant in the counter-claim to produce and avail clear copies to the Defendant in the Original Action and Plaintiff in the counter-claim herein the various documents in regard to the matters in question in this suit, and particularly;(i)All the documents particularized in the Defendant in the Original Action and Plaintiff in the Counterclaim Notice to Produce dated 25th July 2024 and served on the Plaintiff in the Original Action and 1st Defendant in the Counter-claim on 30th July, 2024.(b)The costs as occasioned by this application be borne and paid by the Plaintiff in the Original Action and the 1st Defendant in the counterclaim. 6.The application was opposed by the Respondent Jos Management Limited. This is through the Replying Affidavit of Paryantray Dharamshi Dhanani sworn on 11th October, 2024. It attached a CR 12 in respect of the company. This was to show that the letter of authority was issued by directors of the company. It maintained that any other documents sought would be public document available from the Registrar of Companies. This would be upon request. It was maintained that there was no prejudice sought to be cured by this form of discovery. 7.It is the dismissal of this application dated 12th August, 2024 that has triggered this appeal. 8.The Memorandum of Appeal filed raises the following grounds;1.Thatthe learned magistrate erred in referring to a non-existent application.2.Thatthe learned magistrate erred in dismissing he Appellant’s Notice of Motion Application dated 12th August 2024.3.Thatthe learned magistrate erred in fact and in law in failing to find that the documents sought by the Appellant from the Respondent are crucial to fair and just determination of the case and that the Appellant will be prejudiced if the same are not supplied.4.Thatthe learned magistrate erred in finding that CR12 provided by the Respondent suffices as evidence of the authority in question and that the letter of authority signed by the two directors is sufficient to prove the delegation of authority to Dr. Dhanani and that the retroactive ratification of an agent’s authority is permissible under common law principles of agency.5.Thatthe learned magistrate erred in finding that the Appellant could access the requested documents directly from the Registrar of Companies under the Access to Information Act, 2016.6.Thatthe learned magistrate erred in fact and in law in finding that there is no legal provision requiring the filing of a notice of motion to enforce a notice to produce.7.Thatthe learned magistrate erred in fact in finding that the Appellant should invite the court to draw adverse inferenced in case of con-compliance.8.Thatthe learned magistrate erred in finding that the Application dated 12th August 2024 unnecessarily burdens the court and aims at delaying the proceedings.9.Thatthe learned magistrate erred in finding that the application dated 12th August 2024 has no merit. 9.The Appellant seeks the following reliefs from this Court.1.The Ruling and order of the Lower Court be set aside;2.The Notice of Motion Application dated 12th August 2024 be and is hereby allowed.3.The Respondent be and is hereby directed to avail the documents as depicted in the Notice of Motion Application dated 12th August 2024 which are;a)The Resolutions for the appointment of Shantilal Devchand Shah and Ramniklal Lalji Shah as directors of Jos Management Limited; andb)The notice filed with the Registrar of companies notifying the Registrar of the appointment of Shantilal Devchand Shah and Ramniklal Lalji Shah as directors of Jos Management Limited.4.The appellant be awarded costs of this appeal and the costs in the Lower Court. Issues for Determination 10.The Court has considered the Memorandum of Appeal, the Record of Appeal, the written submissions and the oral highlights by Counsel for the parties. The Court frames a single issue for determination as follows;a)Whether the Trial Court erred in dismissing the application by way of a Notice of Motion dated 12th August, 20204. Analysis 11.This is an interlocutory appeal. This is because the proceedings before the Trial Court have not been concluded. It is still a first appeal to this Court. Hence it is under a duty to re-evaluate and re-analyse afresh the evidence adduced before the Trial Court and draw its own independent conclusions. In doing so, the Court must bear in mind that the Trial Court had the advantage of seeing and hearing the witnesses firsthand — see Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123. a) Whether the Trial Court erred in dismissing the application by way of a Notice of Motion dated 12th August, 20204. 12.The Trial Court correctly noted the provisions of Order II Rule 7 of the Civil Procedure Rules, 2010. This calls for disclosure of all the documents that a party wants to rely upon at the Trial. Failure to do so may invite the sanctions of the Court. The Court may also draw adverse inferences. 13.The Appellants submit that the documents sought are crucial for purposes of proving the authority or lack of it for the individuals acting for the Respondent. Whether they were duly authorized by the Respondent to act or proceeded on its behalf. 14.The letter of authority dated 16th November, 2023 has already been furnished. A CR 12 from the Registrar of Companies has also been furnished. It would appear that the Appellant is not satisfied with the documents produced. Alternatively, they harbor doubts as to whether the directors had validly been appointed as per resolutions. 15.The Court notes that the hearing itself is yet to start before the Trial Court. Yet the application before the Trial Court went beyond discovery. It casts doubt as to the authenticity of the documents it seeks to have produced. 16.This has now been turned into a mini-trial of the resolutions of the company and authorization of the witnesses and deponents. This would appear to this Court to go over and above the normal confines of discovery. It goes into the internal working, structures and management of the company itself. Yet this is not even at the hearing itself. 17.The Appellant would be entitled at a hearing to cross-examine the Respondent’s witnesses as to the authenticity of the letter of authorization, when the directors were appointed, and the resolutions appointing them. 18.The Trial Court would have been wading into the arena of the trial, even before the trial date. It cannot be faulted for declining to wade into these waters. 19.The Trial Court was of the view that no prejudice was demonstrated to the effect that failure to produce the documents would render the Appellant at a disadvantage or prejudice. The Appellant submits that it has a constitutional right to access those documents at it prepares for its trial. The Trial Court did remind the Appellant that these are public documents that can be obtained from the Companies Registry. 20.The basis of a notice to produce is not to compel production. It is to put an adverse party, that the opposing party requires the production of an original document in Court. A Notice to Produce under Sections 68 and 69 of the Evidence Act is an evidentiary notice. Its purpose is to lay the foundation for the admission of secondary evidence. It is not a discovery process and does not empower the Court to compel an adverse party to produce a document merely because a notice has been issued. The clearest statement of this principle is found in the decision by my brother F. Nyagaka J. in 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). The Court held as follows;“It is clear that a Notice to Produce documents relates to production of secondary evidence. It has nothing to do with the production of primary evidence….Therefore, it is clear that a Notice to Produce a document is given when the party issuing it has a copy of the primary (or original) document which happens to be in the power or possession of the adverse party. Two things must be clear here: that the original exists or existed and there is proof thereof that is needed. Also, the issuer of the Notice to Produce cannot through any reasonable and lawful means obtain the original and that original is in the power or possession of the adverse party. If it does not exist, the adverse party cannot be compelled to give it because it is not in existence. He cannot have power or possession of a non-existent document. Again, the law did not contemplate the compulsion of the other party to produce an original: rather the party claiming that the original exists is permitted to produce the secondary document thereof upon satisfaction of Section 68 of the Act. 2In Gari & 2 others V Republic [1990] KLR it was held that “A notice to produce secondary evidence under Section 69 of the Evidence Act (Cap 80) is given to an adverse party who has the document in question or under whose power the document is.” 21.One of the consequences of failure to produce the documents sought is that the opposing side can produce and rely on secondary evidence. Section 69 of the Evidence Act which provides for Notice to Produce states 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—(i)when the document to be proved is itself a notice;(ii)when from the nature of the case, the adverse party must know that he will be required to produce it;(iii)when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;(iv)when the adverse party or his agent has the original in court;(v)when the adverse party or his agent has admitted the loss of the document;(vi)when the person in possession of the document is out of reach of, or not subject to, the process of the court;(vii)in any other case in which the court thinks fit to dispense with the requirement. 22.The Court is aware that this is an interlocutory Appeal. It will thus remind itself to refrain from making any further comments that may prejudice the trial which is yet to commence. What the Court has highlighted is sufficient to arrive at a determination The Court is not persuaded that the Trial Court erred in declining to allow the application. For the reasons stated, the Appeal is lost. 23.As to costs, the same lie at the discretion of the Court and follow the event. The costs are awarded to the successful Respondent. Determination 24.The Appeal herein is dismissed for lack of merits. 25.The costs thereof are awarded to the Respondent. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 10TH DAY OF JUNE, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of:Miss Zainab holding brief for Mr. Zarvia for the Appellant.Mr. Omwenga for the Respondent.Mr. John Paul - Court Assistant.