Chase Bank (Kenya) Ltd v Cannon Assurance (K) Ltd (Civil Appeal 11 of 2017) [2019] KECA 313 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that hiding or losing documents you hold can cost you the case, even if you claim you cannot find them.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is basis for the Court of Appeal to interfere with the learned Judge's exercise of discretion under Section 22 of the Civil Procedure Act in allowing discovery
- 2.Whether, in discovery, a party can only ask for documents stated in their list of documents
- 3.Whether the burden of proving the whereabouts/custody of the documents lay with the appellant or the respondent
- 4.Whether the trial court's order was unrealistic and incapable of compliance, rendering it an order in vain
Key legal issues
#Interference with the exercise of discretion by a trial judge
The Court of Appeal would not interfere with the trial judge's discretionary order for discovery as no misdirection, misapprehension of law, or failure to consider a relevant matter was shown
The appellant had to demonstrate that the learned Judge misdirected himself, misapprehended the law, or ignored a relevant matter, resulting in a wrong decision. The respondent had proved the test for discovery: possession and materiality of the documents. The judge's finding that the documents were still in the appellant's possession was supported by Mr. Mwaura's cross-examination admissions, so there was no basis to disturb the ruling.
Whether discovery is limited to documents in a party's list of documents
No. Documents need only be aligned with the pleadings; they need not appear in the list of documents for discovery to be ordered
Order 3 rule 2 of the Civil Procedure Rules requires copies of documents to be relied on at trial to accompany the plaint, but the law permits a party to seek leave to amend pleadings and file supplementary documents at any stage under Order 11. The six documents were alluded to in the plaint and witness statements, satisfying the two tests of relevance and possession, custody or power. Restricting discovery to listed documents would cause injustice and spawn needless applications.
Burden of proof as to the location and custody of the documents
The burden lay on the appellant under Section 112 of the Evidence Act, as the movement and whereabouts of the documents after receipt were facts especially within its knowledge
The appellant received the documents to give financial advice; only it could attest to which employee received them, whether receipt was documented, where they were stored, who reviewed them, and whether they were returned. The deponent admitted there was no forwarding letter or documentation of movement and that the officers who received the documents had left. Failure to prove return led to the conclusion that the documents remained in the appellant's possession.
Whether the order was in vain and secondary evidence should be the alternative
The order was not in vain; if the appellant fails to produce the documents, the respondent may lead secondary evidence and the court may draw an adverse inference under Section 119 of the Evidence Act
Section 68 of the Evidence Act permits secondary evidence where the original is in the possession or power of the person against whom it is sought to be proved and, after notice, they fail to produce it. The court may also conclude from the omission that the documents would be adverse to the withholding party, embodying the doctrine of spoliation. The existence of this fallback does not nullify the production order.
Legal principles established
#- An appellate court will only interfere with the exercise of discretion where the judge misdirected himself on some matter, misapprehended the law, or failed to take into account a relevant matter, resulting in a wrong decision
- Discovery is not confined to documents contained in a party's list of documents; documents aligned with the pleadings that are relevant and in the custody of the opposite party may be ordered to be produced
- Where a fact is especially within the knowledge of a party, as with the movement and whereabouts of documents in its custody, the burden of proving or disproving that fact lies on that party
- Where a party with custody or control of evidence fails or refuses to produce it, the court is entitled to draw an adverse inference, embodying the doctrine of spoliation or suppression of evidence
- Where a court orders production of documents and the party fails to comply, the opposing party may lead secondary evidence of the documents' contents and existence
Court orders
#- 1.Appeal dismissed
- 2.Appellant directed to bear the costs of the appeal
- 3.Trial court's ruling allowing discovery and directing return of the six documents left undisturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 534 of 2012
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court under the Civil Procedure Act (Section 22 discovery ruling); appeal as of right on the exercise of judicial discretion
Relief refused
#Setting aside the trial court's order for production and return of the six documents
The respondent proved possession and materiality of the documents; no basis to interfere with the trial court's discretion
Appellant's submission that documents not listed in the respondent's list of documents cannot be the subject of discovery
A straight-jacket approach limiting discovery to listed documents would result in injustice and is contrary to the spirit of sections 1A and 1B of the Civil Procedure Act
Costs
The appellant to bear the costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Under the circumstances, we dismiss the appeal and direct the appellant to bear the costs of the appeal.
In short, we do not agree with the appellant’s position that only documents contained in the list of documents can be requested in discovery.
The test for discovery is proof of possession and materiality of the information sought by the parties.
Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party.
It is trite law that the appellate court will only interfere with the exercise of discretion where the Judge misdirected himself in some matter and as a result arrived at a wrong decision or where he misapprehended the law or failed to take into account a relevant matter.
Issues in the judgment
#The judgment states internally inconsistent dates for the impugned ruling, describing it first as dated 16th August 2016 and later as a ruling dated 16th August 2017, while the cause title says the ruling was dated 16th August 2016
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nyaku Limited v Office Suites Developers Limited; Gheewala & another (Interested Parties) (Environment and Land Case E166 of 2025) [2026] KEELC 1338 (KLR)[2026] KEELC 1338 (KLR)9 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Chase Bank (Kenya) Ltd v Cannon Assurance (K) Ltd (Civil Appeal 11 of 2017) [2019] KECA 313 (KLR)", Case Analysis (2019). Civil Appeal No. 11 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/313/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.