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ELCPartially AllowedNot stated in the judgment text provided· [2022] KEELC 3651 (KLR)

Sidian Bank Limited v Ngugi & 5 others (Civil Case 40 of 2020) [2022] KEELC 3651 (KLR)

Environment and Land Court
27 July 2022
CYC.K Yano
2,761 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to force a bank and the National Registration Bureau to hand over documents, ruling that information requests must follow the Access to Information Act first.

What this practically means

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Executive summary

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The 3rd and 4th respondents in an Originating Summons filed by Sidian Bank Limited over the purported cancellation of its charge over land parcel Nyaki/Kithoka/1914 brought an application dated 16th June 2021 seeking: (1) an order directing the National Registration Bureau to disclose the legal holder of identity card No. 10052582 and the registration particulars of Stella Wanjiru Mureithi; (2) leave to file a further list of documents containing a sale agreement between the 3rd respondent and the deceased Michael Mowesley Rukunga; and (3) an order directing the Bank to supply loan and security documents including the loan application form, sale agreement, payment evidence, guarantorship form, default notices, the spouse's consent and identity card, and valuation reports. The Bank opposed, arguing res judicata, lack of privity, irrelevance, and that relevant documents had already been availed. Delivering a ruling on 27th July 2022, Yano J held that the only real issue in the suit is whether the Land Registrar acted lawfully in cancelling the Bank's charge, so the propriety of the loan and identity documents is not in issue. Article 35 access to information must be pursued under the Access to Information Act, and orders cannot issue against the National Registration office which is not a party and was never asked to act. Suspected offences should be reported to investigative agencies, which need no court order to investigate. Prayers 1 and 3 were dismissed for mala fides; prayer 2 was allowed with leave to file the further documents within 7 days. Costs were ordered to abide the outcome of the main suit.

Key legal issues

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01

Whether the court could order discovery of the identity and registration particulars of identification cards from the National Registration Bureau

Holding

Refused; the proper channel is the Access to Information Act and the office sought against was not a party to the proceedings

Reasoning

While Article 35 guarantees access to state-held information, the Access to Information Act provides the framework for requesting such information, and no request or denial was demonstrated. Further, the office directed to give the information was not named as a party, and condemning a non-party unheard offends natural justice.

p. 5
02

Whether the applicants could obtain the Bank's lending documents by way of discovery

Holding

Refused; the Bank had uncontrovertedly availed all relevant documents and no notice to produce was issued, showing mala fides

Reasoning

The Bank stated it had made available to the court and the applicants all documents relevant to the issues; that averment was not controverted. The applicants also never issued a notice to produce and inspect under the evidence framework. The issues in the suit concern the lawfulness of the cancellation of the Bank's charge, not the propriety of the loan documents.

p. 5
03

Whether leave should issue for the 3rd respondent to file a further list of documents

Holding

Granted, as no prejudice was demonstrated

Reasoning

The court held that where no party would suffer prejudice, its discretion should be exercised in favour of admitting the further documents; leave was granted with a 7-day filing and service timeline.

p. 5

Legal principles established

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  • Access to information held by a state entity should first be sought under the Access to Information Act, and orders cannot be sought against a non-party which has not been asked and refused
  • Suspected criminal conduct should be reported to investigative agencies, which may investigate and undertake forensic analysis without a court order

Court orders

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  1. 1.Prayers 1 and 3 of the application dismissed
  2. 2.Prayer 2 allowed: leave granted to the 3rd respondent to file a further list of documents containing a sale agreement between himself and Michael Mowesley Rukunga, to be filed and served within 7 days
  3. 3.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Constitution of KenyaArticles 10(2)(b), 35, 159
  • Evidence ActSection 69
  • Access to Information ActNot specified
  • National Police Service ActSection 35(G)
  • National Police ActSection 24
  • Criminal Procedure CodeSection 194A

Cases cited (4)

  • Concord Insurance Company Limited v NIC Bank Ltd
    (2013) eKLR
  • Abn Amro Bank N V v Kenya Pipeline Company Limited
    (2019) eKLR
  • Oracle Productions Ltd v Decapture Ltd & 3 others
    (2014) eKLR
  • M L Sethi v R P Kapur
    1972 AIR 2379, 1973 SCR (1) 697
Jurisdiction invoked
Civil Procedure Act sections 1A, 1B, 3A; Articles 10(2)(b), 35 and 159 of the Constitution of Kenya (application for directions on discovery and access to information in pending ELC proceedings)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sidian Bank Limited v Ngugi & 5 others (Civil Case 40 of 2020) [2022] KEELC 3651 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3651/eng@2022-07-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.