Disa Enterprises Limited v Cecilia Cherono Milgo & 50 others [2021] KEELC 2956 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC  CASE  NO. 478 OF 2018

DISA ENTERPRISES LIMITED.............................................PLAINTIFF/APPLICANT

VERSUS

CECILIA CHERONO MILGO & 50 OTHERS...............DEFENDANTS/RESPONDENTS

RULING

1. This is the Notice of Motion dated 24th February 2020 brought under section 3A and Section 22 of the Civil Procedure Act, Order 51, Rule 1 of the Civil procedure Rules, 2010, Section 63(e) of the Civil Procedure Act  (Cap 21), Article 159 (d) of the Constitution of Kenya 2010.

2. It seeks orders:-

1. Spent.

2. That this honourable court be pleased to issue an order directing the 22nd and 23rd and 24th defendants to produce the following documents either in original and/or certified copies:

a. Title Deed to the property known as LR No 209/11620, Saika Estate;

b. Title Deed Plan No. 150509 issued by the Director of Survey on 10th of August 1912;

c. Certificate of registration of Saika Makonge Juakali Association;

d. Agreements for sale of shares with Saika Makonge Juakali Association;

e. Share certificates and allotments of Plots Nos 65, 66 and 68; and

f. Defendants’/respondents’ membership corticated of Saika Makonge Juakali Association.

3. That this honourable court be pleased to issue an order direction the 1st, 5th, 8th, 9th, 15th, 18th, 29th, 37th, 28th and 46th Defendants to produce the following documents either in original and/or certified copies.

a. The certificate of registration of Saika Makonge Juakali Association.

b. The defendants membership certificate of Saika Makonge Juakali Association.

c. The title documents for the property known as 11564, 115665, 11567, 11455, 11337 and 11620.

d. Letters of allotment issued to the defendants.

e. Approval to subdivide the parcels of land from the county council.

f. Deed plans issued by the relevant authorities.

g. Development plans issued by the relevant authorities.

h. Authority from the local administration, national government and county government to construct rental, commercial, residential and dwelling buildings.

4. That the plaintiff/applicant be allowed to inspect and take copies of all the documents listed in prayer 2(a) to (f) above all inclusive and prayer 3(a) to (h) above all inclusive and related to the matter in question which are in the defendants’/respondents’ possession.

5. That this honourable court be pleased to order that the said documents to be delivered within fourteen (14) days from the date of the order.

6. That in default the 22nd, 23rd and 24th defendants/respondents’ written statements of defence and counterclaim dated 12th February 2020 and the 1st, 5th, 8th, 9th, 15th, 18th, 29th, 37th, 38th and 46th defendants/respondents’ statement of defence should be struck out.

7. That the plaintiff/applicant be awarded costs of this application.

3. The grounds are on the face of the application and are set out in paragraphs 1 to 5.

4. The application is supported by the affidavit of Lilian Atuo Opondo, sworn on the 24th February 2020.

5. The application is opposed. There is a replying affidavit sworn by Patrick Kerongo, Advocate of the 1st, 5th, 8th, 9th, 15th, 18th, 29th, 37th and 38th defendants/respondents sworn on the 6th November 2020.

6. It is the plaintiff’s/applicant’s case that the documents sought to be produced are material to its case.  Mr. Kerongo, for some of the defendants, on the other hand contends that they have already filed their list of documents. That the said list has been served on the plaintiff.  Further that some of the documents being sought are in possession of the 53rd – 56th defendants.

7. Section 69 of the Evidence Act provides that: -

“Secondary evidence of the contents of the documents referred to in Section 68(1) (a) of this Act shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his advocate such notice to produce it as is required by law or such notice as the court considers reasonable in the circumstances of the case……”.

It is the plaintiff’s/applicant’s case that it requires the said documents in order to adequately respond to the issues raised by the defendants’/respondents’ in their statement of defence and counterclaim.

8. The defendants have not demonstrated that they will suffer any prejudice if such documents are availed to the plaintiff.

9. I find merit in this application and I allow the application in terms of prayers No 2, 3, 4 and 5 respectively.  The costs of this application do abide the outcome of the main suit.

It is so ordered.

..........................

L. KOMINGOI

JUDGE

In the presence of:-

Ms Daudi for the Plaintiff

No appearance for the Defendants

Phyllis - Court Assistant