Davjon Group Ltd v County Government of Nairobi & 2 Others; National Land Commission & Another (Interested Parties)

ii. That the Notice to Produce by the 2nd Defendant/Respondent dated 10th day of June, 2025 be set aside and/or dismissed; iii. That the Costs of this Application be provided for together with interest thereon at such rate and for such period as this Honourable Court may deem fit; and iv. Any such and further relief as this Honourable Court may deem fit to grant. 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Jonathan Maingi Mutuku, the Plaintiff’s Director, sworn on even date. THE APPLICANT’S CASE 3. The deponent averred that the larger part of the documents sought to be produced in primary form by the 2nd Defendant/Respondent were either addressed to the Plaintiff, served on the Plaintiff during the hearing before the 1st Interested Party, copied for the Plaintiff's benefit by the 1st and 3rd Defendants, subject to judicial notice, or held by the Defendants and Interested Parties by virtue of the public nature of their offices. 4. He contended that the Notice to Produce was frivolous, oppressive, vexatious, an abuse of the Court process and imposed an undue burden on the Plaintiff after the Respondent had already confirmed the matter as ready for hearing. He averred that although the 2 nd Defendant filed its Memorandum of Appearance on 29 th June 2023, it filed ELC NO. E198 OF 2023 2

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its Notice to Produce on 10 th June 2025, a day before the hearing on 11th June 2025, despite having confirmed its availability to proceed with the hearing. 5. He deposed that the 2nd Defendant attended several PreTrial Conference proceedings and mentions and did not raise any issue regarding the production or the veracity of the Plaintiff's documents. He further contended that the 2nd Defendant had a further opportunity to do so at the Directions hearing on 22nd July 2024, which it failed to take. 6. He further averred that the 1st Defendant and the 3rd Defendants did not object to the copies, as the bulk of the documents sought lay within the Defendants' and Interested Parties' record-keeping systems. He contended that the 2nd Defendant's approach was in bad faith, as it was well aware that its record-keeping and access arrangements did not permit the Plaintiff to have possession, custody or control of certain documents held by relevant government ministries and departments, which were inaccessible to the Plaintiff as a private entity, thereby rendering the Notice to Produce unenforceable. 7. He noted that the 2nd Defendant's List of Documents includes records from the same ministries and for the same period as those listed by the Plaintiff. He argued that some of the documents sought had already been placed on record by the 3rd Defendant and the 1st Interested Party, thereby rendering the Notice unnecessary and intended to frustrate the Plaintiff. ELC NO. E198 OF 2023 3

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8. He deposed that by a letter dated 22nd July 2024, the 2nd Interested Party invited the Plaintiff to produce documents in primary form, specifying the time, place, officers, and a four-day notice period. He stated that when he appeared before the 2nd Interested Party on 26th July 2024 and 7th August 2024, the 2nd Interested Party's officer, Mr Anderson Weru, expressed satisfaction with the ownership documents presented, namely the original title issued to the Plaintiff following the 1st Interested Party's determination. 9. He specifically noted that the requisite legitimate signatures of authorised individuals had been affixed to the documents. He averred that, given the history of the matter, the Plaintiff had placed the original ownership document in the safe custody of an advocate not currently on record, and could not risk presenting it in the manner proposed by the 2nd Defendant/Respondent, which was unspecified and unwarranted. 10. He urged the Court to take notice of the ruling of Hon. Justice Ocharo Kebira in Aluoch v Kenya Ports Authority & Another [2025] KEELRC 1756 (KLR), where the Court held that a notice to produce should clearly specify the required documents and the time and place of production, and recognised that certified bundles filed by all parties may suffice. He further urged the Court to take notice of the ruling of Hon. Justice G.M.A. Ongondo in Kosgey & Another v Kosgey & 3 Others [2025] KEELC 477 (KLR), which appreciated the position of a public officer as the official custodian of land records. He ELC NO. E198 OF 2023 4

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contended that the 3rd Defendant/Respondent's List of certified documents corroborated the veracity of the Plaintiff's documents and the position taken by the 1 st Interested Party. 11. He averred that the 2nd Defendant's conduct amounted to a continuation of injustice against the Plaintiff by: wasting limited judicial resources, by filing its List of Witnesses and List of Documents on 20th May 2025 despite confirming the matter ready for hearing on 3rd March 2025, and then serving the Notice to Produce a day before the scheduled hearing on 11th June 2025; requesting documents already within its own record systems as agent of the 1 st Defendant/Respondent, as confirmed by records filed by the 3rd Defendant and the 1st Interested Party; and seeking the production of documents properly subject to judicial notice, such as records of proceedings of the 1 st Interested Party and Kenya Gazette publications. In conclusion, he urged the Court to allow the application as prayed. THE 2ND DEFENDANT/RESPONDENT’S CASE 12. The 2nd Respondent filed Grounds of Opposition dated 24 th November 2025 and a Replying Affidavit dated 25 th November 2025, sworn by Viola Odhiambo, the 2 nd Respondent’s Legal Officer, in opposition to the application. 13. The 2nd Respondent contended that the application is incurably defective, incompetent, misconceived, bad in law, and an abuse of the Court’s process. She asserted that the application seeks to curtail the 2 nd Defendant’s ELC NO. E198 OF 2023 5

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constitutional right to inspect the documents the Applicant intended to rely on, and that it should be struck out with costs. 14. The deponent averred that, by electing to rely on the documents in its bundle, the Applicant had placed their authenticity and integrity in issue, entitling the Respondent under Section 69 of the Evidence Act to inspect the originals. She argued that the Notice to Produce sought only the production and inspection of the letter of allotment, title documents, deed plan, correspondence, and other supporting materials forming the basis of the Plaintiff’s claim, to verify the chain of title, confirm authenticity, and guard against alteration, manipulation, or forgery. She also denied that the Notice was frivolous, vexatious, or oppressive. 15. She further averred that, upon careful review of the Applicant's bundle, the Respondent became fully aware of the specific documents requiring inspection. She asserted that there was no delay, as the Notice was filed on 10 th June 2025, well in advance of the hearing scheduled for 9 th December 2025, and therefore caused no prejudice to the Applicant. She contended that the Rules do not require a Notice to Produce to be issued at the pre-trial stage and that the 2nd Respondent is entitled to demand strict proof at any stage before the hearing. The deponent further asserted that no court order barred the Respondent from exercising this right. 16. She further averred that the 1 st and 3rd Defendants' failure to challenge the documents was immaterial, as each ELC NO. E198 OF 2023 6

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Defendant is entitled to adopt its own independent approach. She contended that the allegations of bad faith were unfounded, as the Notice only targeted documents the Applicant itself had placed on record. The deponent argued that if the Applicant could not produce certain originals, the proper recourse was to depose to that on oath rather than raise unmerited accusations. She maintained that the presence of some sought documents in the bundles of the 3rd Defendant or Interested Parties was irrelevant, as reliance on other parties' bundles could not cure gaps in the Applicant's own evidence. The deponent argued that the claim that the original title was held by another advocate was not a valid justification for non-production, and that reliance on Kosgey v Kosgey was inapplicable, since recognition of the 3 rd Defendant as public custodian of records did not relieve the Applicant of its burden to produce originals of documents within its custody that it intended to rely upon. 17. The deponent maintained that the burden of proof under Sections 107 to 109 of the Evidence Act rested squarely on the Applicant and could not be shifted. She further maintained that the Notice had been properly issued under Section 69 of the Evidence Act and Order 11 Rule 3(2)(c) of the Civil Procedure Rules, rendering any objection to its form or format a mere technicality contrary to Article 159(2)(d) of the Constitution. She contended that the Notice was lawfully filed in full compliance with the Civil Procedure Rules and the Evidence Act. The deponent argued that the Applicant's refusal to comply ELC NO. E198 OF 2023 7

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raised legitimate doubt about the authenticity of its documents. She contended that the application was intended to obstruct discovery, conceal material facts, and delay the just and expeditious disposal of the matter, contrary to the overriding objectives in Sections 1A and 1B of the Civil Procedure Act. THE RESPONSE 18. In a further affidavit dated 26th March 2026, the deponent averred that the 2nd Respondent lodged a complaint with the 1st interested party regarding encroachment on the suit property. 19. He further averred that during the proceedings, the 1 st and 2nd Respondents filed, relied on, and received documents that were not different from those placed in court. He asserted that the 1st Respondent supplied the Applicant with copies of documents during discussions to acquire the interests. 20. He contended that after the county published the Applicant as an alleged land rates defaulter, the Applicant sought clarification of the amount demanded but had not yet received a response. 21. He maintained that the Applicant has always relied on this set of documents in engaging the parties, and that the 1st and 2nd respondents have deemed them proper when making payments. He maintained that it is unjust for the same documents to be cast into doubt by the very public entities that confirm them as legitimate for payment purposes. ELC NO. E198 OF 2023 8

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22. The deponent urged the court to dismiss the notice to produce. 23. The application was canvassed by way of written submissions. THE APPLICANT’S SUBMISSIONS 24. The Applicant filed its submissions dated 6 th April 2026. 25. On legitimate submitted expectation that the and bad faith, Counsel documents relied upon by the Applicant were supplied by the Respondents and the 1 st Interested Party at various stages of the acquisition of the Applicant's interest. Counsel contended that the Notice to Produce introduced uncertainty and unpredictability into engagements between public entities and innocent persons regarding documents supplied by those entities contrary to Articles 10(2)(c) and 159(2)(e) of the Constitution. 26. Counsel further submitted that the Notice, filed by the 2 nd Respondent as an entity under the 1st Respondent's auspices, was inconsistent with the 1 st Respondent's conduct. Counsel noted that the 1 st Respondent did not oppose the Documents, application and that, or the Applicant's List of during the pendency of the proceedings, it listed the Applicant as a rates defaulter in a circular dated 11th June 2024. Counsel argued that this conduct acknowledged the Applicant's interest when convenient, while denying the propriety of its documents when not. ELC NO. E198 OF 2023 9

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27. Counsel submitted that this amounted to bad faith and invoked the maxims ex turpi causa non oritur actio and ex dolo malo non oritur actio, contending that a party must approach the court with clean hands. Counsel relied on Section 85 of the Evidence Act, which confers prima facie evidentiary status on Gazette Notices, to argue that interrogating such notices was frivolous, vexatious, and an abuse of the Court’s process. 28. Counsel invoked Section 120 of the Evidence Act to submit that the 2nd Respondent is estopped from demanding the production of documents, particularly because the documents arose from the Respondents' own participation in proceedings before the 1st Interested Party and from their participation in and certification of the suit as ready for hearing. Counsel relied on Sections 34(1)(b)-(d) and 34(2)(a) of the Evidence Act regarding the admissibility of evidence from prior proceedings involving the same parties and substantially the same issues. Counsel noted that the 1st Interested Party's determination had arisen from a complaint lodged by the 2 nd Respondent's Managing Director, and that neither Respondent had taken any contrary action to enforce or challenge that determination in the eleven years since. 29. Counsel invoked the maxim omnia praesumuntur rite esse acta and Section 16 of the Evidence Act to submit that acts of public entities, including the relevant Ministries, the 3rd Respondent, the 1st Interested Party, and the Government Press, should be presumed regular. Accordingly, Counsel argued that the Applicant was ELC NO. E198 OF 2023 10

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unlikely to have obtained its documents from any source other than the Respondents. Counsel relied on Sections 119, 96(1) and (2) of the Evidence Act to submit that documents corroborated by the 3 rd Respondent, the custodian of land records, should be presumed genuine. To support this argument, Counsel cited Kosgey & Another v Kosgey & 3 Others [2025] KEELC 477 (KLR). 30. Counsel relied on Articles 28 and 40 of the Constitution to submit that the Court should consider whether allowing the Applicant's List of Documents would deny the Respondents an opportunity to interrogate their veracity, and whether preventing reliance on the documents would entail a lower risk of injustice. To support this argument, Counsel relied on the "lower risk of injustice" test cited by Ojwang Ag. J in Suleiman v Amboseli Resort Ltd [2004] eKLR. Counsel also cited the observations of Maraga J (as he then was) in Charles Mwangi Kamau v Mohamed Hassan Sheikh Noor HCCC No. 2 of 2005 against permitting a party to retain an advantage obtained by disregarding the law. Further reliance was placed on Article 10(2)(b)-(c) of the Constitution, Sections 3(1), 13(2)(d) and 19(1) of the Environment and Land Court Act, and Section 3A of the Civil Procedure Act to submit that the ends of justice demanded dismissal of the Notice to Produce. THE 2ND DEFENDANT’S SUBMISSIONS ELC NO. E198 OF 2023 11

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31. The 2nd Defendant filed its submissions dated 28 th April 2026. 32. Counsel submitted that the sole issue for determination was whether the Court should strike out the 2 nd Respondent's Notice to Produce dated 10 th June 2025. 33. Counsel submitted that, under Section 67 of the Evidence Act, documents must be proved by primary evidence, unless an exception applies. Counsel set out the circumstances in which secondary evidence may be given under Section 68, submitting that none of the Plaintiff's objections to the Notice to Produce fell within any of these exceptions. Counsel relied on Section 69 of the Evidence Act, which governs the issuance of a notice to produce and its exceptions. Counsel submitted that the Notice was filed pursuant to these provisions on 10 th June 2025, and that the documents itemised therein were exclusively in the Plaintiff's possession and appeared in the Plaintiff's list of documents. 34. Counsel submitted that it is trite law that a party seeking to rely on documentary evidence bears the burden of producing the originals. Counsel cited Mbithi v Mureithi & 2 Others; Nairobi City County (Interested Party) [2023] KEELC 20489 (KLR) to submit that, under the best evidence rule, any non-production of the original must be explained within the exceptions under Section 68 of the Evidence Act. Counsel relied on Re the Estate of Charles Ndegwa Kiragu (Deceased) [2016] eKLR to submit that a party relying on secondary evidence must lay a factual foundation. Counsel further submitted that ELC NO. E198 OF 2023 12

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the Plaintiff neither furnished cogent reasons for opposing the Notice nor demonstrated the prejudice it would suffer if the orders sought were not granted. Counsel further submitted that the 2nd Respondent is entitled under Article 50 of the Constitution to a fair hearing, including the right to inspect the documents the Plaintiff relied upon. Counsel relied on Jibril Konse Ali v AIG Kenya Insurance Company Limited, where the Court ordered the production of documents found relevant and necessary to the fair determination of the suit. 35. Counsel submitted that the procedure for admitting secondary evidence is not automatic. Counsel relied on Lwangu v Ndote (Environment & Land Case 79 of 2010) [2021] KEELC 2 (KLR) to submit on the fourstage process governing the production of secondary evidence, namely proper filing in accordance with the rules, disclosure of the copy to other parties and the court, the basis for reliance on secondary rather than primary evidence, the court's satisfaction that a proper basis had been laid in accordance with the rules of relevance and admissibility, and finally proof of the contents, state or physical appearance of the document. Counsel further submitted that the Plaintiff failed to provide satisfactory reasons for relying on secondary evidence. 36. Counsel submitted that it was evident from the Plaintiff's List of Witnesses dated 28th April 2023 that the makers of several documents, including the Chief Valuer K.J. Ayiecho and Miss M.W. Thairu of the Ministry of Local Government, would not be called at trial. Counsel argued that this ELC NO. E198 OF 2023 13

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would deprive the 2nd Respondent of the opportunity to cross-examine them despite identifying material inconsistencies in the Plaintiff's evidence, rendering the documents suspect and making production of primary evidence necessary. Counsel relied on Variety Flooring Works Limited v Fredrick Mutinda Mutuku [2020] eKLR, where the Court held that photocopies produced without calling the makers, and without full compliance with Order 11 of the Civil Procedure Rules at the pre-trial stage, should be produced in accordance with the Evidence Act. ANALYSIS AND DETERMINATION 37. Having considered the application, the responses on record and the rival submissions, the only issue for determination is whether the Notice to Produce dated 10 th June 2025 should be set aside. 38. Section 67 of the Evidence Act sets out the general rule that documents are to be proved by primary evidence, subject to any exception provided by law. Section 68 sets out the circumstances in which secondary evidence may be given, while Section 69 provides for notice to produce as follows: “Secondary evidence of the contents of the documents referred to in Section 68[1] [a] shall not be given unless the party proposing to give such secondary evidence has previously given to the other party in whose possession the document is, or to ELC NO. E198 OF 2023 14

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his advocate, such notice to produce it as required by law or such notice as the court considers reasonable in the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases; i. When the document to be proved is itself a notice; ii. When, from the nature of the case, the adverse party must know that it will be required to produce it; iii. When it appears or is proved that the adverse party has obtained possession of the original by fraud or force; iv. When the adverse party or his agent has the original in court; v. When the adverse party or his agent has admitted the loss of the document; vi. When the person in possession of the document is out of reach of, or not subject to, the process of the court” 39. In Concord Insurance Company Limited (Under Statutory Management) v NIC Bank Limited [2020] KEHC 8086 (KLR), the Court held that Section 69 is intended to permit reliance on secondary evidence as an exception to Section 67, which requires documents to be proved by primary evidence. The Court further held that ELC NO. E198 OF 2023 15

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the recipient's failure to comply does not attract any censure, as suggested by counsel for Concord. It merely gives the maker of the Notice the right to produce secondary evidence and precludes the recipient from objecting to such production. 40. The Plaintiff’s objection to the Notice is on the ground that it was issued late, is unnecessary in respect of documents already available, and imposes an undue burden upon it. 41. Regarding the timing, the record shows that the 2 nd Defendant entered an appearance on 29 th June 2023 and participated in various pre-trial proceedings. The Plaintiff contends that the Notice was filed on 10 th June 2025 shortly before the hearing on 11 th June 2025. The 2nd Defendant contends that no rule bars it from issuing the Notice before the hearing. 42. The Court accepts that parties are expected to conduct litigation in accordance with the overriding objective of the Civil Procedure Act. Sections 1A and 1B of the Civil Procedure Act require the court and the parties to facilitate the just, resolution expeditious, of disputes. proportionate The Court and affordable must therefore discourage procedural conduct that unnecessarily delays proceedings. 43. The Plaintiff has not demonstrated that the Notice is incapable of being issued merely because it was filed after the pre-trial process. The 2 nd Defendant’s right to test the documentary evidence on which the Plaintiff intends to rely cannot, without more, be deemed waived because the Defendant previously participated in pre-trial proceedings. ELC NO. E198 OF 2023 16

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Accordingly, this Court does not find that the Notice, issued on 10th June 2025, is liable to be struck out merely because it was filed late in the proceedings or after the matter had been confirmed ready for hearing. A notice to produce goes to the proof of documents at trial, not to the finality of case management directions, and Section 69 does not confine its issuance to the pre-trial stage. 44. Regarding the argument that most of the documents sought already appear in the 3rd Defendant and the 1st Interested Party’s bundles, a party bears its own burden under Sections 107 to 109 of the Evidence Act to prove the documents it relies upon, and cannot discharge that burden by pointing to another party's bundle. The fact that a document appears in another party’s bundle does not necessarily dispense with the evidentiary burden attaching to the party seeking to rely on it. Based on the foregoing, this court finds that the presence of these documents elsewhere in the record does not, at this interlocutory stage, entitle the Plaintiff to have the Notice set aside. 45. The Applicant has relied on the presumption of regularity. The Plaintiff contends that, since the documents were supplied by public entities, the Respondent, having participated in the relevant processes, cannot subsequently challenge their authenticity. A document issued by a public authority does not necessarily establish every copy of that document as primary evidence. Similarly, the presumption that official acts have been regularly performed cannot be elevated to a conclusive ELC NO. E198 OF 2023 17

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presumption of the authenticity or contents of every document presented before the court. 46. The argument, although relevant, does not negate the statutory requirement governing proof of documentary evidence. 47. The maxim omnia praesumuntur rite esse acta, that all things are presumed to have been done correctly, does not assist the Plaintiff at this stage as it is a presumption applicable to the assessment of evidence, not a bar to a party testing that evidence. 48. The Plaintiff asserts that it cannot produce the original ownership document because it is in the custody of an advocate who is not currently on record. A party seeking to rely on secondary evidence cannot simply assume that the copy will be admitted. The evidentiary foundation for secondary evidence must be established. The mere assertion that an original is held by an advocate is, without further explanation, insufficient to establish that the original is unavailable or that the statutory requirements for admitting secondary evidence have been satisfied. 49. This Court is equally not persuaded that the 2 nd Defendant's Notice discloses bad faith. The fact that the 1st Respondent has not itself opposed the Plaintiff's List of Documents, or has separately treated the Plaintiff as a rates defaulter, does not bind the 2nd Defendant, a distinct party entitled to adopt its own litigation position. ELC NO. E198 OF 2023 18

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50. The upshot of the foregoing is that the application dated 9th November 2025 is without merit and is hereby dismissed with costs. RULING SIGNED, DATED, AND DELIVERED VIA ND MICROSOFT TEAMS THIS 2 DAY OF OCTOBER, 2026. ……………………………………. HON. T. MURIGI JUDGE IN THE PRESENCE OF: Adano holding brief for Ibrahim for the 2nd Defendant Ms Cherono for the 1st Interested Party Vena – Court Assistant ELC NO. E198 OF 2023 19

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