LSG Lufthansa Services Europa/Afrika Gmbh & another v Mwangi (Practising in the name and Style of Muturi Mwangi & Associates Advocates)
The bottom line
#Kenya's Court of Appeal ruled that companies can't be personally forced to answer written questions unless the court order specifically names the individual officers.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court correctly exercised its discretion by granting orders compelling the appellants to respond to the interrogatories filed by the respondent
- 2.Whether the court's orders of 27th February 2015 specifically directed Mr. Lyimo and Mr. Diebold to answer the interrogatories
- 3.Whether the responses or objections to the interrogatories filed by the appellants amounted to answers, and thus compliance with court orders
Key legal issues
#Whether the court's orders of 27th February 2015 specifically directed Mr. Lyimo and Mr. Diebold to answer the interrogatories
The orders did not specifically name the persons required to answer; the respondent should have sought orders allowing delivery of interrogatories to specific officers.
The court construed the orders according to their ordinary sense, applying the South African rule that a judgment's intention is ascertained from its language read as a whole. The orders directed the appellants generally to file answers, though they specified the subject matter (travel entries of the named officials). No application for review or appeal against the orders was made.
Whether the appellants' responses and objections amounted to compliance with the court orders
Yes - answering some interrogatories and objecting to others with reasons amounts to compliance; the trial judge erred in finding willful disobedience.
A party directed to respond may answer directly or raise objections with reasons. Mr. Githinji's affidavit declined certain interrogatories with appended reasons. The sufficiency of the response was not for the appellate court, but the appellants could not be said to have refused or neglected to comply with the orders of 27th February 2015.
Whether interrogatories can be administered to persons not parties to the suit
The court declined to decide the merits/relevancy of the interrogatories, noting the appeal was not against the grant of leave to serve them; it answered only the compliance questions.
The court distinguished an appeal against leave to serve interrogatories from an appeal against orders compelling specific persons to respond. It confined itself to whether the orders named Mr. Lyimo and Mr. Diebold and whether the responses amounted to compliance, leaving the relevancy question open.
Legal principles established
#- Interrogatories must be answered by the party to whom they are directed or, where a corporation, by an officer or agent furnishing information available to the party.
- A court order's intention is ascertained primarily from its language, read as a whole; extrinsic evidence is admissible only if the meaning is uncertain.
- Where the court does not direct a specific person to answer interrogatories, the corporation must select a suitable agent/official to respond; information held by officers in their official capacity is deemed in the organization's possession.
- Disobedience of an order under Order X (interrogatories) attracts only an adverse inference, not contempt sanctions.
- A party wishing to serve interrogatories on a corporation must specifically seek orders allowing delivery to a member or officer; the choice of respondent rests with the party delivering the interrogatories.
Court orders
#- 1.Appeal allowed with costs to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Petition No. 154 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (Constitution of Kenya, Article 164; Court of Appeal Act) - the judgment does not cite a specific provision
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.
In the premises and in the circumstances of the case before us, we nd the appeal meritorious and come to the conclusion that the learned Judge did not exercise his discretion correctly. We consequently allow the appeal with costs to the appellants.
In view of the foregoing, and in answer to the rst question, we nd that the orders of the court did not specically direct Mr. Lyimo and Mr. Diebold to answer the interrogatories.
On the second question of whether the responses or objections to the interrogatories led by the appellants amounted to answers to the interrogatories, our answer is in the armative.
The only eect of disobedience of an order under Order X is the adverse inference against the person who willfully refuses to partially or fully comply with such an order.
Where the court fails to direct that a specic person responds to the interrogatories, it is incumbent upon the organization to select a suitable agent/ocial who can furnish such information as is available to the organization
Issues in the judgment
#Duplicate paragraph numbering - two consecutive paragraphs are both numbered '4'.
Inconsistent dates for travel entries sought - May 2014 in the order, May 2015 in counsel's request.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "LSG Lufthansa Services Europa/Afrika Gmbh & another v Mwangi (Practising in the name and Style of Muturi Mwangi & Associates Advocates)", Case Analysis (2022). Civil Appeal 274 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/834/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.