Badalu Workers Agency Limited Limited v Kiboy (Claim E26079 of 2024) [2025] SCC 70 (KLR)

5. They added that by the Respondent voluntarily disclosing her M-PESA records for July and August 2024, the Respondent confirmed the materiality and relevance of those M-PESA statements to the determination of this dispute. 6. The Claimant/Applicant further added that the requested discovery is narrow in scope, specific in time frame, and focused only on establishing financial dealings between the Respondent and the employee post termination, hence proportionate and necessary, and that the Respondent would not be prejudiced if the orders sought are granted. 7. The Respondent opposed the instant Application through a Replying Afidavit sworn on 09th May 2025 by the Respondent. The Respondent took the position that the instant Application was prejudicial and untimely at this stage, as the same ought to have been made pre-trial conference and pre-trial disclosure since the Civil Procedure Rules require compliance with case management requirements before a hearing date is set. 8. The gist of the Respondent’s response was that the instant Application had been made too late in the day. 9. On 23rd October 2025, the parties' counsel argued the instant Application orally. Counsel reiterated the contents of their clients’ pleadings in advancing the positions taken by their respective clients regarding the instant Application. 10. Ms. Atsieno, for the Claimant/Applicant, reiterated that the documents sought by the Claimant/ Applicant were material to this claim, and that the orders sought ought to be granted since this matter had not been set down for hearing. She added that no prejudice will be occasioned to the Respondent if the orders sought are granted. 11. Ms. Atsieno cited Volume 13, paragraph 1 of Halsbury Laws of England, which holds that discovery helps parties access documents relevant to their case, thereby ensuring a fair trial. 12. In a rejoinder, Ms. Mwasame characterized the instant Application as an abuse of the court process since the same had been filed after this claim had been certified ready for hearing. She added that the scope of what the Claimant was seeking through the instant Application was outside the scope of the Respondent’s defence and counterclaim. 13. Neither party filed written submissions. The parties herein chose to rely on their pleadings and oral arguments. Analysis and Determination 14. This court has duly considered the pleadings filed herein and the oral submissions made by the respective parties. 15. It is imperative to note from the onset that the instant Application was grounded on the wrong provisions of the law. An Application for discovery ought to be grounded on section 22 of the Civil Procedure Act. 16. Be that as it may, this court is well aware that Rule 32 of the Small Claims Court Rules disallows the rejection of any pleading or document filed in this court for want of form. The foregoing is in line with the holding in Ryce Motors Limited V Jonathan Kiprono Ruto & Another [2005] KEHC 576 (KLR), where Kasango J (as she then was) rendered herself thus:The defendant’s submission that the plaintifi cannot obtain stay by citing O 41 R. 4 (2) although merited, will not sway the court to dismiss the application. That finding is fortified https://new.kenyalaw.org/akn/ke/judgment/scc/2025/70/eng@2025-10-30 2

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by the ruling of the court of appeal in Civil Appeal No. 189 Of 2001 (unreported) Postal Corporation Of Kenya – And – I.t. Inamdar And Others where the judges of appeal stated: “ In our view, the notice of motion that was before the superior court could have been better drafted and the appellants sentiments are not altogether baseless, particularly when one considers that the applicant was seeking orders that were to see finality of the entire suit……..we do not find that the appellant was prejudiced by the bad drafting of the notice of motion and thus, nothings turns out on the first and tenth grounds of appeal. Citation of a wrong order or rule is not necessarily fatal to an application.” Indeed, the test is; was the respondent prejudiced by the faulty drafting of the present application. I would answer that in the negative, the respondent knew quite clearly the application that he was facing. I therefore reject that objection. 17. Guided by the authorities above, it follows that the instant Application is properly before this court, notwithstanding the defect in the provisions of the law that the said Application is grounded on. 18. In the circumstances, this court holds that the only issue for determination is whether the instant Application is merited. 19. The Claimant’s position regarding the instant Application is that the orders sought ought to be granted since the documents in question are relevant to the fair determination of this claim. The Respondent, on the other hand, took the view that the instant Application was filed too late in the day, and that the documents sought were outside the scope of her response to the claim and counterclaim. 20. Discovery is provided for under section 22 of the Civil Procedure Act. Section 22 of the Civil Procedure Act provides: 22. 21. Power to order discovery and the like Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party— (a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; (c) order any fact to be proved by afidavit. (Emphasis added) It can also be argued that discovery finds constitutional underpinning under the right to access to information envisaged in Article 35(1) (b) of the Constitution in the following terms: Every citizen has the right of access to information held by another person and required for the exercise or protection of any right or fundamental freedom 22. A reading of section 22 of the Civil Procedure Act shows that an Application for discovery can be filed at any time in the course of the proceedings. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/70/eng@2025-10-30 3

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23. Of course, the term ‘at any time’ used in the provisions of the law above does not mean that an application for discovery can be made even after a matter has been fixed for judgment. 24. The discretion granted to the court under section 22 of the Civil Procedure Act is supposed to be exercised judiciously. For instance, the court cannot entertain an application for discovery where parties have closed their respective cases. It would appear that an application for discovery is allowed or disallowed depending on the stage that a matter has reached. 25. The hearing of this matter is yet to begin. It is given that pleadings herein are closed. However, there is no law in this jurisdiction to the efiect that the closing of pleadings is a ground to disallow an application for discovery. 26. Therefore, taking the totality of the circumstances of this case into consideration, the Respondent’s position that the instant Application was filed too late in the day lacks the limbs to stand on in law. 27. The scope and purpose of discovery has been the subject of various writings and judicial pronouncements. 28. According to Black’s Law Dictionary, 7th Edition, discovery is defined as; “ The disclosure by the defendant of facts, titles, documents, or other things which are in his exclusive knowledge or possession, and which are necessary to the party seeking the discovery as a part of a cause or action pending or to be brought in another court, or as evidence of his rights or title in such proceeding”. 29. The Halsbury’s Laws of England Vol 13, paragraph 1, provides the importance of discovery of evidence. it states as follows:“ The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their relevant cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial. Each party is thereby enabled to see before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him, to eliminate surprise at or before the trial relating to the documentary evidence and to reduce the cost of litigation”. 30. Havelock J in Concord Insurance Co. Ltd v. NIC Bank Ltd (2013) eKLR rendered himself thus on the importance and scope of discovery: The issue for determination, from the foregoing is discovery and inspection of documents, and whether the Applicant is warranted under the applicable rules and by the application, to the documents sought. According to Black’s Law Dictionary, 7th Edition, discovery is defined as; “The disclosure by the defendant of facts, titles, documents, or other things which are in his exclusive knowledge or possession, and which are necessary to the party seeking the discovery as a part of a cause or action pending or to be brought in another court, or as evidence of his rights or title in such proceeding. It follows that in an application for discovery, a party has to ensure that the documents sought are “necessary” to the cause of action before or pending trial before the Court. It has to be a disclosure of relevant facts to the matters in issue. According to Halsbury’s Laws of England, Volume 13 para 1, the learned authors detail; “The function of the discovery of documents is to provide the parties with the relevant documentary material before the https://new.kenyalaw.org/akn/ke/judgment/scc/2025/70/eng@2025-10-30 4

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trial so as to assist them in appraising the strength or weakness of their relevant cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial. Each party is thereby enabled to see before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him, to eliminate surprise at or before the trial relating to the documentary evidence and to reduce the cost of litigation. Discovery is therefore limited solely to the matter in contention. The Court, in exercise of its discretion to issue such orders as to discovery, will be guided by the relevance of the documents that the applicant seeks, in relation to the pleadings. The authors in Halsbury’s (supra) at para 38 write: “Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue then discovery on that issue is limited to the matter raised in the particulars.” 31. Mong’are J in Charania v Raj Metals Limited & another (Civil Case E161 of 2019) [2024] KEHC 14643 (KLR), stated doth on this subject: The purpose of the discovery is to provide parties with the relevant documentary material during trial to assist the party in its case, which in turn allows a fair disposal of the suit. I am persuaded by this court’s decision in Oracle Productions Ltd Vs Decapture Limited & 3 others [2014] eKLR in which it was held that: “ 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 the trial.” 32. The thread running through the authorities above is that an application for discovery will only be allowed where the documents sought are within the scope of the dispute at hand, and that it can be disallowed where it turns out to be a fishing expedition. 33. Discovery is also confined to the documents relevant to the case that are in the knowledge and possession of the other party to the suit. 34. This claim revolves around the question of whether the Respondent engaged Damary Nabalayo Okoroi in employment after the termination of the Employment Agency agreement herein. 35. The documents sought by the Claimant are within the knowledge and possession of the Respondent. The Respondent has not expressed any dificulty in accessing or obtaining the documents sought by the Claimant. 36. Those documents go to the crux of this claim and counterclaim and are indeed relevant for the just and expeditious determination of this claim and counterclaim, since the said documents will greatly assist in proving or disproving the Claimant’s case. 37. It is against this backdrop that this court is satisfied that the documents sought by the Claimant are relevant and necessary for the fair disposal of this claim and counterclaim. Determination 38. The upshot of the above is that the Claimant’s Application dated 22nd April 2025 is allowed in the following terms: a. The Respondent to produce and serve upon the Claimant the M-PESA statements for her line number 0743377491 covering the period 1st September 2024 to 30th March 2025, within fourteen (14) days of this ruling, failing which https://new.kenyalaw.org/akn/ke/judgment/scc/2025/70/eng@2025-10-30 5

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the Respondent’s Response to the Claim and Counterclaim will stand struck out with costs. b. Each party to bear their costs of this Application. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 30TH DAY OF OCTOBER 2025 T.O. OMONO ADJUDICATOR In the presence Ms. Atsieno for the Claimant/Applicant C/A: Mr. Rioba Mn 27th November 2025 for directions….. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/70/eng@2025-10-30 6

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