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ELCAllowed· [2025] KEELC 477 (KLR)

Kosgey & another v Kosgey & 3 others (Environment & Land Case E022 of 2023) [2025] KEELC 477 (KLR)

High Court of Kenya
5 February 2025
GOG. M. A Ongondo
575 words in judgment
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The bottom line

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The High Court in Kapsabet confirmed that a party can compel a public officer to appear and produce documents once a proper notice has been served.

What this practically means

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Executive summary

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This is a ruling delivered by Hon. G. M. A Ongondo, Judge, at Kapsabet on 5th February 2025 in an unspecified suit. The plaintiffs, through Mr Francis Murgor, applied to call the 3rd defendant to produce documents specified in a notice to produce documents dated 25th April 2024, premised inter alia on section 22(a) and (b) of the Civil Procedure Act (Cap 21) and Order 11 Rule 3(2)(b) of the Civil Procedure Rules 2010. Counsel submitted that the notice had been duly served on all defendants, that the 3rd defendant was a common witness duty-bound to produce public documents, and that the plaintiffs' case was scheduled for hearing that day. Counsel for the 1st and 2nd defendants objected, arguing that prior adjournments at the plaintiffs' instance had attracted costs and that the plaintiffs had not procured the 3rd defendant's attendance. Counsel for the 3rd and 4th defendants associated himself with the objection, indicating he would call the 3rd defendant the following day, with liberty for the plaintiffs to cross-examine on the documents. The court held that service of the notice was undisputed, that public documents were listed therein, and that Articles 50(1), 25(c), 48 and 159(2)(b) of the Constitution guaranteed the plaintiffs' right to call the witness without delay. Applying James Kanyiita Nderitu v Marios Philotas Ghikas (2016) eKLR, the court allowed the application.

Key legal issues

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Whether the plaintiffs could compel the 3rd defendant, a public officer, to appear and produce documents under a notice to produce

Holding

The application was allowed; the plaintiffs have the right to call the 3rd defendant pursuant to the duly served notice to produce documents.

Reasoning

The court found it undisputed that the notice to produce documents was served on the 3rd defendant, and that the suit was listed for hearing on consecutive days consistent with the constitutional dictate that justice shall not be delayed. Public documents were listed in the notice served on the 3rd defendant, a public officer. Relying on constitutional guarantees of fair hearing, access to justice and expeditious justice, the court held the plaintiffs entitled to call the 3rd defendant and allowed the application.

p. 2

Legal principles established

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  • A party has a fundamental right to call a witness, including a public officer served with a notice to produce documents, in pursuit of a fair hearing and expeditious disposal of justice.

Court orders

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  1. 1.The application to call the 3rd defendant to produce documents specified in the notice to produce documents dated 25th April 2024 is allowed
Jurisdiction invoked
Inherent and case-management powers under the Civil Procedure Act (Cap 21) and Civil Procedure Rules 2010, guided by Articles 50(1), 25(c), 48 and 159(2)(b) of the Constitution of Kenya 2010

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, "Kosgey & another v Kosgey & 3 others (Environment & Land Case E022 of 2023) [2025] KEELC 477 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/477/eng@2025-02-05

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