[2023] KEHC 25720 (KLR)

W. E Tiley (Muthiga) Ltd v Devji Megji & Brothers Limited & another (Civil Suit 128A of 2006) [2023] KEHC 25720 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25720 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 128A of 2006

DKN Magare, J

November 20, 2023

Between

W. E Tiley (Muthiga) Ltd

Plaintiff

and

Devji Megji & Brothers Limited

1st Defendant

Kenya Revenue Authority

2nd Defendant

Ruling

1. This Ruling arises from the Objection to the production of documents proposed by the Plaintiff. As I was writing this ruling another set of documents were filed titled, “Plaintiff’s Further List and Bundle of Documents and Bundle of Digital Bundle of Documents Contained in Boxes 1-14. ” The List of Documents is dated 27th September 2023 and I can see a flash disk attached to it containing the information in the said boxes.

2. The Documents are said to be a digital version of the documents in boxes 1-14 of the Plaintiff’s list of documents for the reason submitted by counsel for the Plaintiff that the boxes are bulky and could not be availed in court for want of space. It is further submitted that the documents could not be produced earlier.

3. The 2nd Defendant objected the production of the List of Documents dated 27th September 2023. It was the submission of the 2nd Defendant that the Plaintiff was selectively dealing with the evidence. The 2nd Defendant had to verify the contents of the documents.

4. Further, the 2nd Defendant objected the production of the documents for the reason that the Documents had been intended to be produced without certification as required under Section 78A of the Evidence Act.

5. The 1st Defendant associated itself with the submissions of the 2nd Defendant and prayed that the objection be allowed.

1st Defendant’s submissions 6. The first Defendant filed submissions dated 3/7/2023 relying on various authorities. They stated that the witness Firoz Jessa Haiderali intended to produce a bundle of documents. they challenged the production of copies and as opposed to original. They stated that the issues were whether, there is an evidential value, and whether they can produce those exhibits. They question whether, the witness could produce the documents they sought to produce.

7. They relied on various authorities. The first authority is that of Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] eKLR, where the court of appeal stated as doth: -“18. The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents – this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record.21. In Des Raj Sharma v Reginam (1953) 19 EACA 310, it was held that there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa v The State (1994) 7-8SCNJ144, it was held that if a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence.22. Guided by the decisions cited above, a document marked for identification only becomes part of the evidence on record when formally produced as an exhibit by a witness. In not objecting to the marking of a document for identification, a party cannot be said to be accepting admissibility and proof of the contents of the document. Admissibility and proof of a document are to be determined at the time of production of the document as an exhibit and not at the point of marking it for identification. Until a document marked for identification is formally produced, it is of very little, if any, evidential value.”

8. They relied on the case of Jackson Ndwiga v Elizabeth Thara Ngahu [2019] eKLR, where the court, F. Muchemi. In the case of Lwangu v Ndote (Environment & Land Case 79 of 2010) [2021] KEELC 2 (KLR) (10 November 2021) (Ruling), where the court stated as doth: -“Primary evidence was the best evidence and ought to be produced unless one came into the exceptions of the law permitting the production of secondary evidence. Section 68 of theActwas clear on the exceptions. The witness did not explain where the original letter was. If indeed he was the maker, it was expected that he should have retained one of the originals of the document. In the absence of the original document therefore, the witness was duty-bound to lay down the basis for the production of the copy to satisfaction of the court. He should have, if it was lost or destroyed, proved that he reported the loss at a police station. He should have probably produced a Police Abstract to prove that and also produced the findings of the police investigation about the loss or destruction. It was not enough to produce a Police Abstract or Occurrence Book (OB) record about the report of loss or destruction. The findings of the investigation arising from the report were crucial because they would show whether or not the loss or destruction was either deliberate or accidental in which case the court could absolve the person so reporting from willful destruction or concealment of evidence. Alternatively, he should have explained that the person who had the original, for example, if that was the case, could not avail it after due diligence to have him do so. The witness had not even demonstrated to the instant court that he had made efforts to trace the original document but his efforts yielded no fruit. All the witness did when in the dock was to attempt to produce a photocopy of the document in evidence without a basis for it.”

9. In the case of Variety Flooring Works Limited v Fredrick Mutinda Mutuku [2020] eKLR, the court, B. Thuranira Jaden held as doth: -“15. Although the pre-trial had been concluded, it seems there was no full compliance by the Defendant’s side by the time the suit was fixed for hearing. During the pre-trial stage, there was no indication whether the parties had agreed on the production of any documents without calling the makers thereof or whether the copies of the originals could be produced. What was produced were the photocopies of the original documents and without the calling of the makers. Order 11 Civil Procedure Rules was not fully complied with. The questioned documents therefore ought to have been produced in accordance with the provisions of the Evidence Act.”

10. The 2nd Defendant filed submissions dated 7/7/2023. they stated that the Respondent did not have the right to have the documents produced. they stated that the documents should be formally produced. they relied on the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 others [supra] as doth:-“22. Guided by the decisions cited above, a document marked for identification only becomes part of the evidence on record when formally produced as an exhibit by a witness. In not objecting to the marking of a document for identification, a party cannot be said to be accepting admissibility and proof of the contents of the document. Admissibility and proof of a document are to be determined at the time of production of the document as an exhibit and not at the point of marking it for identification. Until a document marked for identification is formally produced, it is of very little, if any, evidential value.23. In the instant case, we are of the view that the failure or omission by the Respondent to formally produce the documents marked for identification being MFI 1, MFI 2 and MFI 3 is fatal to the respondents’ case. The documents did not become exhibits before the trial court; they had simply been marked for identification and they have no evidential weight. The record shows that the trial court relied on the document “MFI 2” that was marked for identification in its analysis of the evidence and determination of the dispute before the court. We are persuaded by the dicta in the Nigerian case of Michael Hausa v The State (1994) 7-8 SCNJ 144 that a document marked for identification is not part of the evidence that a trial court can use in making its decision.24. In our view, the trial judge erred in evaluating the evidence on record and basing his decision on “MFI 2” which was a document not formally produced as an exhibit. It was a fatal error on the part of the respondents not to call any witness to produce the documents marked for identification. The respondents did not tender any formal evidence to challenge the defamation claim lodged against them.25. We have considered the persuasive decision and reasoning in the case of Timsales Limited v Harun Thuo Ndungu, Civil Appeal No. 102 of 2005. In this case, there was additional evidence through the testimony of the medical doctor; in the present case, the respondents having opted not to call any witness, there was no evidence on record in support of the respondents’ defence. A significant distinction with the Timsales case (supra) is that the High Court observed that“such evidence could only be doubted if there was some material evidence demonstrating differences…” In the present case, there are material differences in the typed proceedings of the court and the alleged handwritten photocopy of proceedings of the court marked as “MFI 2. ” These differences needed a witness to explain the authenticity of the handwritten photocopy, this could only be done if the document marked for identification as “MFI 2” were produced in evidence as an exhibit by the maker or any other competent witness. Failure to produce amounted to non-reception and legal exclusion of the document.

11. Both Defendants prayed that I disregard the documents. The parties also argued orally on the list of document’s filed later together with a flash disk.

12. The Plaintiff filed submissions stating that what is being produced has been in court for the last 10 years. These are some rulings and documents filed by the Defendants in other proceedings, a precursor to the current proceedings. in the submissions dated 8/7/2023, the Plaintiff stated that there is no prejudice to be suffered if they are allowed. They stated that they have 78,882 documents, which the parties were invited to scrutinize and have not done so.

13. They state that the second Defendant is not opposed to production since they did an in depth audit of those documents. They state that they cannot object to the documents and then ask the court to expunge the same documents from the record.

14. Lastly, they beseeched the court to allow their submissions as they exceeded 2 page limit.

Analysis 15. I will have been surprised if the parties stuck to the two-page limit. I anticipated a thesis, hence limiting to 2 pages. They were precise and to the point. Each had 4 to 6 pages. Only the Plaintiff admitted to the minor infraction. I am grateful to both sides for well researched submissions, though both sides missed the point.

16. Starting with the second Defendant, their response missed the mark. It is the court that directed that it will rule on formal production. That is why the same was not dealt with at the point of hearing. The court wanted to see the relevance of almost 80,000 pages of paper before ruling on production. There are two aspects both Defendants missed. The prediction of the documents and their probative value. Probative value is a value judgment that will be rendered at the time of Judgment. The mere fact that documents have been produced, does not mean that they have been proved.

17. The Plaintiff also missed the point. Production has nothing to do with admission of the claim. Whether part or whole on part of the Defendants. Secondly, documents can be admitted which are at the end of the day irrelevant to the claim. The position given in the case of DT Dobie & Company Ltd vs Muchina [1982] eKLR suffices. in that case, the court stated as doth: -“The Court ought to act very cautiously and carefully and consider all the facts of the case without embarking upon a trial before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the Court. At this stage, the Court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the Court itself is not usually fully informed so as to deal with the merits without discovery, without oral evidence tested by cross-examination in the ordinary way. As far as possible indeed, there should be no opinions expressed upon the Application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks right.” (emphasis mine).

18. Though not striking out, if I select the documents, I will be making a decision on the merit. The Defendants were allowed and cross examined extensively over days. It turned out that some of the summarizes are an amalgam between documents of two or so companies. like the biblical sower, the best deal is to let both the chuff and wheat grow and separate them at harvest time. only animals can be removed.

19. In that connection parties did or ought to have done compliance with Order 11. It is under Order 11 that objections to documents are made. trial by objection was buried long ago, when order 11 was introduced. I have even seen notices to produce filed. The court will deal with the full effect of those in its Judgment.

20. However, as things stand, I cannot see any memorandum detailing documents that are objected to a pretrial conference. Without such, the parties shall forever keep their peace. The same applies to the documents field by the Defence. I have not seen any Memorandum objecting to their production. Whether the documents proof what they purport to do, the decision of Kenneth Nyaga Mwige v Austin Kiguta & 2 others[supra] suffices.

21. This leaves two issues, the list of documents dated 27th September 2023 and the computer flash disk annexed to it. The second one what documents are documents. Whereas issues may not be raised after compliance with Order 11, there is necessity for a document to be a document in its prosper sense. the originals were in court and the court had occasion to see the same. These were bulky documents. There needed to be a different way of dealing with the same in view of the settled procedures regarding special damages as held in the case of David Bagine vs Martin Bundi [1997] eKLR, where the Court of Appeal stated as follows: -“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684: "....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter v Hyde Park Hotel Limited[1948] 64 TLR177 thus:“Plaintiffs must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it"

22. This was the same holding in the case of Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited[2016] eKLR, where the court of Appeal (Makhandia, Ouko &M’inoti, JJ.A) stated as doth: -“We do not discern from our reading of this decision a departure from the time tested principle that special damages should not only be specifically pleaded but must also be strictly proved. Further the facts in that case are clearly distinguishable from the facts of this case. In that case the appellant had in its defence admitted the value attached to the tyres. However, its main averment in the defence was that the tyres had been delivered whereas the respondent claimed they had not. This is not the case here. Further considering the colossal amount demanded of the respondent by the appellant running into millions of shillings, the appellant could not run away from the requirement of specifically proving the loss with credible evidence.”

23. Order 11 of theCivil Procedure Ruleshas significance that goes to the root of justice. The common rule of natural justice known as Audi alteram partem is what is embodied, as a matter of practice, in the necessity of pretrial directions. Pretrial directions thus, stricto sensu contains the packaged rules that enable the right to a fair hearing.

24. Courts have considered similar situations and made attempts to strike a balance between strictly observing the pretrial directions and relaxing such pretrial directions in the quest to achieve justice for both parties.

25. In the case of David Kimani Gitau v Francis Wainaina [2016] eKLR Prof Jel Ngugi J, (as he then was) propounded this position as follows:“pre-trial procedures, like all rules of procedures, are the handmaidens of justice and not its mistress. Hence, they are not formulaic or talismanic steps which must be rigidly followed regardless of their utility to the trial process. Indeed, Order 11 of theCivil Procedure Codeexists to ensure that the trial process is more efficient. Hence, a Court may, where circumstances and context permit or dictate skip, abbreviate or bespoke the pre-trial processes and procedures. The nature of this particular case indicates that this case might be a good candidate for that.”

26. In this case, the hearing commenced on 28th March 2023. On 26th June 2023, further hearing of the Plaintiff’s case proceeded. During further hearing of the Plaintiff’s case on 4th October 2023, the Plaintiff sought to rely on the List of Documents dated 27th September 2023. This had been filed on 27th September 2023 a week to the date of the hearing. It was stated to contain the digital version of the documents in Boxed 1-14 of the Plaintiff’s Bundle of Documents earlier filed in Court. The documents were described as bulky and which could not be accommodated in court for want of space.

27. I agree with the reasoning the court in Methuselar Keyah Lubembe v Albina Kipkemoi [2019]eKLR where the court stated as follows:“13. In deciding whether to grant leave or not, a court of law would weigh the benefit to be achieved by allowing the documents against the possible harm to be suffered by refusal. That question is asked and considered on both sides of the case – the plaintiff’s case as well as the defendants case. That question is normally fashioned as to what decision would in the circumstances of each case serve the ends of justice.”

28. I have to balance between justice to the Plaintiff and prejudice to the Defendants to achieve the right to a fair hearing for both parties. This is a matter where the Plaintiff’s witnesses have testified thought the Plaintiff is yet to close the case. The documents alluded to in the bundle of documents dated 27th September 2023 are a digital version of stated boxes 1 to 14 which the Defendant has never had sight of. In preparing its Defense, the Defendants must have not anticipated the information in the boxes 1-14 which are now sought to be produced via a flash disk. In view, this is one of such cases when justice will be achieved only if Order 11 of the Civil Procedure Rules is strictly followed.

29. I therefore agree with the decision of the Supreme Court of Uganda in the case of The Management Committee of Makondo Primary School and Another vs. Uganda National Examination Board, HC Civil Misc Application No.18 of 2010, as cited with approval by Lenaola,J (as he then was) in Mandeep Chauhan vs. Kenyatta National Hospital & 2others [2013] eKLR to the effect that:“It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means a person against whom there is a complaint must be given a just and fair hearing.”Similarly, as noted by the Court of Appeal in Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji Civil Application No. Nai. 179 of 1998:“Whereas the right to be heard is a basic natural-justice concept and ought not to be taken away lightly, looking at the record before the court, the court is not impressed by the point that the applicant was denied the right to defend itself….Clearly the applicant was given a chance to be heard and the court is not convinced that the issue of failure by the High Court to hear the applicant will be such an arguable point in the appeal. The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilised, then the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it.”

30. I am inclined to find that both parties in this had had an equal chance to be heard until the Plaintiff raised the issue of production of the documents late in the day. This, if allowed would prejudice the Defendants who did not contemplate the nature of information in the flash disk sought to be produced in preparing their Defence and would have no opportunity to rectify this position since the Plaintiff’s case had been substantially laid before court through the witness testimonies. In the case of The Union Insurance Company of Kenya Ltd v Ramzan Abdul Dhanji C.A Civil Application No 179 of 1996, the Court said: -“The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilized, then the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it.”

31. I add that a party cannot not purport to unleash a packaged weapon in the last minute of the hearing and expect the opposing party to anticipate the contents of such package as to appropriately compose a Defence. This is a typical case of an attempt to trial by ambush.

32. It could well be that the document is the same. however, parties agree that the flash disk is not similar to the documents that had hitherto been referred to by parties. some were missing. to make matters worse, the same came after cross examination of witness.

33. I also note that parties should never be worried on communication by documents. Documents still speak for themselves. The observation of documents the court cannot read into those documents matters extrinsic to them. In Fidelity & Commercial Bank LtdvKenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth;-“Courts adopt the objective theory of contract interpretation and profess to have overriding view sometimes called Four Corners of an Instrument, which insists that a documents meaning should be derived from the document itself, without reference to anything outside of the document, extrinsic reversed…”

34. There is no part who has referred to the flash disk and the contents therein. I decline to allow the list dated 27/9/2023 and its contents. The flash disk shall only be relevant as far as the same relates to the documents filed earlier. It cannot form an independent document to be admitted separately. There could be a few snakes that could pass.

35. Consequently, I shall expunge all documents filed on 21/9/2023. I note that the Plaintiff has file the scanned version of the documents that were filed and were subject to discovery. Given the bulky nature of the documents in volumes 1-14, I direct as follows: -a.All the documents, except unsigned documents be produced in evidence as Plaintiffs’ exhibits 1-14 as bundles.b.Any document within the bundle that is not signed, is expunged from the record.c.The probative value of those documents shall remain a matter within the domain of final judgment.d.For avoidance of doubt the original documents in the bundles or copies as served on parties shall suffice given the peripheral nature of the documents in determining matters in issue.e.The court shall not take physical documents but scanned copies that have already been uploaded. Parties be at liberty to upload their documents to the efiling system.

Determination 36. The upshot of the foregoing is that I make the following orders: -a.I reject the objection to the production of bundles 1-14 in the Plaintiff’s list of documents. Given the bulk nature of the documents in volumes 1-14, I direct that all the documents, except unsigned documents be produced in evidence as Plaintiffs’ exhibits 1-14. Any document within the bundle that is not signed, is expunged from the record.b.The probative value of those documents shall remain a matter within the domain of final judgment.c.I uphold the Objection by the 2nd Defendant and strike out the List of Documents dated and filed by the Plaintiff on 27th September 2023. d.For avoidance of doubt the original documents in the bundles or copies as served on parties shall suffice given the peripheral nature of the documents in determining matters in issue.e.The Court shall not take physical documents but scanned copies that have already been uploaded. Parties be at liberty to upload their documents to the efiling systemf.Costs in the cause.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 20TH DAY OF NOVEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Mr. Pravin Bowry for 1st DefendantMiss Wambui for the 2nd DefendantNo appearance for the Plaintiff