Okemwa & 8 others v Judicial Service Commission (Cause 16 of 2014) [2015] KEELRC 690 (KLR)
The bottom line
#Kenya's Employment Court ruled you cannot force the other side to hand over documents that help prove their own defence in a case.
What this practically means
#Executive summary
#Key legal issues
#Whether production of documents central to the Respondent's defence and counterclaim could be compelled by the Claimants
No - since it is not the Claimants' responsibility to prove the Respondent's defence and counterclaim, no basis was laid for production of the documents in issue, and the production notice was overruled
The court noted that most documents sought had already been produced. Those remaining in contention related to the Respondent's defence or counterclaim, including the Audit Committee report, appointment letters and imprest registers. Applying the principle in National Social Security Fund Trustees v Dr. Sally Kosgei, production orders do not exist to enable one party to obtain proof of the other's pleadings. Each party bears its own burden of proof, and a party failing to produce documents aiding its case works against itself. Ordering production would let the Claimants prove the Respondent's case for it, an irregular mode of litigation.
The requirements for seeking production of or access to documents held by an opposing party
A party seeking production must show the documents are specific and important for the advancement of its own case; where access to information is sought under Article 35(1), the applicant must state the information required, the right to be advanced, and how the information would assist
The court invoked Oluoch v Charagu (per Nyamu J) for the requirement that documents sought be specific and important for the applicant's case, and Timothy Njoya v Attorney General (per Lenaola J) for the requirements of an Article 35(1) application. Measured against these standards, the Claimants had laid no basis for the documents they still demanded, as those documents concerned the Respondent's own case rather than theirs.
Legal principles established
#- A party to a suit may seek production of documents in the possession of the opposing party if the documents are specific and important for the advancement of that party's case
- An order for production of documents does not allow a party to obtain proof of the other party's pleadings at the discovery and inspection stage
Court orders
#- 1.The production notice is overruled
- 2.Costs of the production notice in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court original jurisdiction; references to Article 35(1) of the Constitution on access to information
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okemwa & 8 others v Judicial Service Commission (Cause 16 of 2014) [2015] KEELRC 690 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/690/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.