Mounkenbot Sacco Society v Jane Njeri Peterson

The grounds are that the plaintiff filed this suit against the defendant alleging that she conspired to defraud the plaintiff and stole a sum of Ksh. 50,147,115 by using the particulars of several non-members to create and sign fictitious loan application forms complete with false records about guarantors and securities which they alleged the defendant did during the course of her employment from the year 2015 to the year 2022. A Notice to produce documents dated 10th January, 2023 was filed and served upon the plaintiff who has refused and or neglected to produce. These documents are stated to be in the custody of the plaintiff. In a replying affidavit by the plaintiff sworn on 13th September, 2023 this application is opposed. In the main, the opposition is on the reasons that the applicant through a letter dated 2nd February, 2023 was advised to provide the necessary facilitation for making of copies but there was no response. Secondly, that the applicant has not shown the relevance or necessity of the documents the production of some of which would result in substantial prejudice to the commercial interests of the Sacco. That the production of the documents like the minutes of the Sacco Management Committee meetings and the Credit Committee Meetings would infringe on the respondents right to privacy. Section 22 of the Civil Procedures Act provides as follows; ‘Subject to such conditions and limitations as may be prescribed, the court may at any time, either on its own motion or on the application by either partya) Make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogations, the admission of documents and facts and the discovery and inspection, production, impounding and return of documents or other material objects producible as evidence.’ In the case of Oracle Production Ltd vs. Decapture Ltd & 3 Others (2014) eKLR it was observed that pre-trial discovery was so central to litigation that the entire order II of the Civil Procedure Rules (2010) is substantially devoted to it, including sanctions for non-compliance. Orders 4 and 7 now require parties to file and serve documentary CIVIL CASE NO. 16 OF 2022 2

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evidence with their pleadings, while Order 14 empowers the court to order production impounding and return of documents. That discovery should be limited solely to matters in contention and relevance will only be gauged or tested by pleadings or particulars provided. In the present case the defendant is alleged to have falsified loan application forms by using particulars by non-members. It is the defendant’s contention that her only responsibility was to receive the loan application forms and forward them to the credit committee whose mandate was to verify and approve the said loan application. It is the said committee which would meet to verify and approve the disbursement of the loans and hence it is the one in possession of the said loan forms. I am satisfied that the defendant/applicant has demonstrated sufficiently and substantially that the documents enumerated in the Notice to produce are relevant and necessary in the suit. The said documents are solely in the hands of the plaintiff who has laid allegations of fabrication of the same. The Notice of motion application dated 19th July, 2023 has merit and it is allowed as prayed with costs to the applicant. RULING, SIGNED and DELIVERED virtually this 4th day of March, 2026. _____________________ MARTIN M. MUYA JUDGE In the Presence of: Nanjala hold brief Omondi – For the Respondent Court assistant – Kinyua CIVIL CASE NO. 16 OF 2022 3

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