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ELCPartially AllowedNot stated in the judgment (Environment and Land Case; Plaint dated 11th March 2025)

Kenya Pipeline Corporation v Marula Estates Limited & 2 others (Land Case E018 of 2025) (Environment and Land) [2026] KEELC 2582 (KLR)

Environment and Land Court
23 April 2026
5,998 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court can force parties to hand over documents before pleadings close, so no one has to defend decades-old land claims blindfolded.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Naivasha (M.C. Oundo, J) determines a Notice of Motion dated 19th December 2025 by the 1st and 2nd Third Parties, brought under Section 22 of the Civil Procedure Act and Orders 7, 11 and 51 of the Civil Procedure Rules, seeking to compel the Defendant to produce, file and serve specific documents referred to in its Statement of Defence and Notice of Claim. The documents sought included original titles and deed plans for LR No. 11367 and alleged sub-divisions (LR Nos. 11367/1-5), Government Valuer's reports, a 2001 professional undertaking, correspondence with Kaplan & Stratton from 2003-2004, and stamp duty records. The Defendant opposed, arguing the supporting affidavit was fatally defective as it was sworn by counsel, that the court lacked jurisdiction to order discovery before the Third Parties filed a defence, and that the application was a fishing expedition. The court framed two issues: the validity of the affidavit and the power to order pre-pleading discovery. It held the affidavit was not fatally defective in its entirety - the advocate deponed to formal facts, and the Defendant's failure to file a replying affidavit left the factual averments uncontroverted. On the second issue, the court held that Section 22 empowers it to order production 'at any time', that discovery levels the litigation field and enables fair hearing, and that documents referred to in pleadings are not the subject of a fishing expedition. The application was allowed: the Defendant was ordered to produce the listed documents within 14 days, to make the original titles and deed plans available for inspection on 48 hours' notice, and the Third Parties were granted leave to file their defence within 14 days of receipt. Costs were made costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Third Party's Supporting Affidavit is fatally defective.
  2. 2.Whether the court can order the production of documents before the Third Parties have filed their formal Statement of Defence.

Key legal issues

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01

Whether the Supporting Affidavit sworn by the Third Parties' advocate was fatally defective

Holding

The affidavit was not fatally defective in its entirety. Paragraphs 1, 3 and 11 were averments on formal facts within an advocate's professional knowledge; paragraphs 5, 8 and 14 were potentially defective as contentious allegations, but the Defendant's failure to file a replying affidavit meant the factual averments stood uncontroverted.

Reasoning

Rule 9 of the Advocates (Practice) Rules permits an advocate to give evidence on formal or non-contentious matters, while Order 19 Rule 3(1) confines affidavits to facts within the deponent's knowledge. The court applied Mbugua v Turi Gardens and the Supreme Court's Odinga v Ruto guidance that advocates should not depone to contentious matters. However, since the Defendant filed only grounds of opposition, which address questions of law only, the averments on the need for documents were taken as uncontroverted, curing the defect.

02

Whether the court can order production of documents before the Third Parties file a formal Statement of Defence

Holding

Yes. Section 22 of the Civil Procedure Act empowers the court to order discovery and production 'at any time', and where the documents are referred to in the opponent's pleadings, the applicant has an immediate right to them.

Reasoning

The court held that Section 22's phrase 'at any time' shows the power is not tethered to closed pleadings. Discovery is an enabler of fair hearing under Article 50(2) and access to information under Article 35(2)(b), per ABN Amro Bank v Kenya Pipeline. Requiring a party to plead to allegations from two decades ago without the primary documents referred to in the Defence/Notice of Claim violates substantive justice under Article 159 of the Constitution. Distinguishing discovery for a known issue from a fishing expedition, the court found the application meritorious.

p. 11

Legal principles established

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  • The court has discretion under Section 22 of the Civil Procedure Act to order production of documents at any time, even before pleadings are closed, where the documents are necessary to enable a party to plead its case or to prevent a trial by ambush.
  • Where a party seeks specific documents referred to in the opponent's pleadings, that is not a fishing expedition; a party has an immediate right to see documents referred to in pleadings under Order 7 Rule 5.
  • An advocate may depone to formal, non-contentious matters, but not to contentious or evidentiary facts; however, where the opposing party files only grounds of opposition and no replying affidavit, uncontroverted averments stand.

Court orders

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  1. 1.The Defendant is ordered to produce, file and serve upon the Third Parties all documents listed in the Notice of Motion, save for the public documents (the searches), within fourteen (14) days of the Ruling.
  2. 2.The Defendant shall make available for inspection the original Title Deeds and Deed Plans for LR No. 11367 and its sub-divisions (if any) at the Defendant's Advocate's office, upon giving forty-eight (48) hours' notice, to allow the Third Parties to sight the same and make clear copies.
  3. 3.The Third Parties are granted leave to file and serve their Statement of Defence to the Notice of Claim within fourteen (14) days of receipt of the said documents.
  4. 4.The costs of the application shall be in the cause.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 22 of the Civil Procedure Act; Order 7 Rule 5(d), Order 11 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules

Relief refused

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Production of public documents (official searches/land registers for LR Nos. 11367/3 and 11367/4)

The Defendant is not the issuer of official searches; the Third Parties may procure them from the Land Registry or summon the Land Registrar.

p. 11

Costs

The costs of this application shall be in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Defendant is hereby ordered to produce, file, and serve upon the Third Parties all documents listed in the Notice of Motion, save for the public documents (the searches), within fourteen (14) days of this Ruling.
p. 11Final orders - production of documents
The Defendant shall make available for inspection the original Title Deeds and Deed Plans for LR No. 11367 and its sub-divisions(if any) at the Defendant's Advocate's office, upon giving forty-eight (48) hours' notice, to allow the Third Parties to sight the same and make clear copies.
p. 11Final orders - inspection of original title documents
The Third Parties are granted leave to file and serve their Statement of Defence to the Notice of Claim within fourteen (14) days of receipt of the said documents.
p. 11Final orders - leave to file defence
The costs of this application shall be in the cause.
p. 11Final orders - costs
the true purpose of discovery is to level the litigation field, to expedite hearing, reduce costs and allow parties to gauge the case they will face at trial.
p. 10Purpose of discovery (quoting ABN Amro Bank N.V v Kenya Pipeline Company Limited)
requiring a party to plead to allegations from two decades ago, without access to the primary documents mentioned in the defence/ Notice of Claim, violates the principle of Substantive Justice under Article 159 of the Constitution.
p. 11Substantive justice and pre-pleading discovery

Issues in the judgment

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minor

The name of the deceased advocate is inconsistently spelled in the judgment: 'Ramesh Manek' and 'Ramesh Mane'.

minor

The judgment alternatively describes the case as a 'Ruling' although delivered as a judgment on the Third Parties' application.

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, "Kenya Pipeline Corporation v Marula Estates Limited & 2 others (Land Case E018 of 2025)  (Environment and Land) [2026] KEELC 2582 (KLR)", Case Analysis (2026). Not stated in the judgment (Environment and Land Case; Plaint dated 11th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2582/eng@2026-04-23

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