This ruling determines the 4 th defendant's notice to produce dated 30 th September 2025. The notice is expressed to be brought under Order 16 Rule 6 of the Civil Procedure Rules and requires the plaintiff to produce at the hearing of this suit what is described as the ‘Architecture for IFMIS payment data structure for transactions’. The plaintiff opposes the notice on the ground that the information sought forms part of the back-end architecture of the Integrated Financial Management Information System (hereinafter referred to as IFMIS) which is managed and controlled by the National Treasury and is not in the plaintiff's possession or control.
By the plaint dated 11 th April 2025, the plaintiff seeks recovery of Kshs 14,851,939.65 which it alleges was paid by the Nairobi City County Government (hereinafter referred to as ‘the government’) to the 1 st defendant between 21 st July 2021 and 26 th July 2021 for goods that were never supplied. The plaintiff's case is that the payments were processed through IFMIS by public officers who did not verify the supporting procurement and delivery documents and the defendants participated in the payments in different ways and stages.
The 4 th defendant filed a defence denying participation in fraud, collusion or breach of duty. His case is that at the material time, he had been transferred from the government to the Nairobi Metropolitan Services and did not have physical or operational access to the office or the IFMIS. He admits that an IFMIS user number had previously been allocated to him but denies using it to approve the impugned transaction. The 4 th defendant contends that the continued appearance of his credentials in the system does not prove that he personally accessed or operated the account. He alleges that the responsible information and communication technology officers did not deactivate his credentials after his transfer. He also denies any dealings with the 1 st defendant and states that, if his credentials were used, the use was without his authority.
It is against that defence that, the 4 th defendant seeks the IFMIS payment-data architecture. His position is that the structure of the system, its access controls and its audit trail are necessary to determine whether the entry attributed to him was made by him, by another person using his credentials or by a person with administrative access.
The plaintiff opposed the notice through grounds of opposition dated 14 th April 2026. It avers that the notice proceeds on a false premise that the plaintiff administers IFMIS. It states that its read-only access permits retrieval of transaction information visible at the user interface but does not grant access to or control over the system's back-end architecture.
It is notable that the plaintiff has filed documentary material and witness statements in support of its suit. Of relevance to this ruling is the statement of a senior investigation officer in digital forensics. The witness states that the plaintiff was granted read-only access to IFMIS by the National Treasury through a letter dated 1 st March 2017 referenced as MOF/IFMIS/1/28 ‘E’/40. Acting on a request from the plaintiff's investigations department, he accessed the system through that read-only account and extracted transaction information concerning payments made by the government.
The plaintiff states that it has disclosed the IFMIS extracts available to it, including the transaction records appearing in its filed bundles. Its position is that its access is confined to the front-end user interface and does not extend to system administration, source architecture, database design or the back-end data structure controlled by the National Treasury.
Analysis and determination
The notice was argued by way of written submissions. I have read the 4 th defendant’s submissions dated 18 th May 2026 and further submissions dated 26 th May 2026. I have also read and considered the plaintiff’s submissions dated 25 th May 2026. I have also gone through and considered the authorities cited by the parties.
The 4 th defendant submits that the architecture and data structure are central to the plaintiff's allegation that he approved the payment. He argues that a proper forensic investigation should identify how IFMIS assigns credentials, authenticates users, records access, deactivates transferred officers and attributes a transaction to a particular person. In his view, the plaintiff cannot rely on a system-generated entry without disclosing the system by which that entry was created and attributed. He adds that the documents he asked for are public documents which the plaintiff as a public investigative body cannot claim not have access to as it is capable of obtaining and producing them.
The plaintiff argues that an order for production can only be directed at a person who has possession, custody or legal control of the document or information sought. It maintains that the National Treasury is the entity that manages IFMIS and that the architecture requested by the 4 th defendant is not among the records supplied to it or capable of being generated through its read-only account. It adds that it has disclosed the transaction extracts in its possession and has presented a witness who will explain the nature of its access, the extraction process and the records generated. It submits that the 4 th defendant will be at liberty to cross-examine that witness and to challenge the evidential value of the IFMIS entries at the trial.
For a notice to produce to be effectively enforced, the documents in question must be sufficiently identified and proved to exist. The court must also be satisfied that the documents are in the possession, power or control of the person from whom production is sought. A notice cannot demand a document that does not exist neither can it transfer custody from the actual holder to a party who merely has an interest in or limited access to the repository of the documents. These conditions are satisfied if the issuer of the notice demonstrates that they are in possession of secondary evidence of the documents. That is the purport of Sections 68 and 69 of the Evidence Act.
It was held in Lunani & another (Suing as the Executors of the Will of the Late Stephan Lunani Walela) v Carlsberg International Limited & 4 others [2023] KEELC 22190 (KLR) that;
‘ If it does not exist , the adverse party cannot be compelled to give it because it is not in existence. He cannot have power or possession of a non-existent document. Again, the law did not contemplate the compulsion of the other party to produce an original: rather the party claiming that the original exists is permitted to produce the secondary document thereof upon satisfaction of Section 68 of the Act.’
The position I have taken above was also adopted by Honourable Lady Justice L.M. Njuguna (as she then was) in Ethics & Anti-Corruption Commission v Ahaza & 12 others [2025] KEHC 9036 (KLR) where she held that;
‘My understanding of a Notice to produce documents is that it relates to production of secondary evidence in the hands of a party and it has nothing to do with production of primary evidence. A notice to produce documents can only be issued if the party issuing the same is in possession of a copy/copies of the documents that he is seeking to have the other party produce but not the way the 1 st defendant is doing it in his Notice to produce.
In this case, I note that the documents that the 1 st defendant is seeking to have the plaintiff produce are documents that one would expect to be in possession of the County Government of Vihiga and not the Plaintiff and it is for this reason that when the 1 st defendant requested for them, the plaintiff wrote to the said County Government requesting for the documents. The plaintiff has annexed letters from the said County Government indicating that the documents are not available.
In view of the contents of those letters and in the absence of any evidence from the 1 st defendant that the said documents exist and that they are in possession of the plaintiff, I am prepared to find and which I hereby do, that the 1 st defendant has not satisfied the court that the plaintiff is in possession of the said documents. And for that reason, this court cannot compel the plaintiff to produce documents which are not in its possession.’
The 4 th defendant’s notice to produce calls for what it refers to as ‘architecture for IFMIS payment data structure for transactions.’ It does not identify a particular document by title, date, author, version, module or repository. I may be wrong but it appears to me that what is being asked for is the entire architecture or structure without limitations to the transactions in question. What is clear is that the 4 th defendant seeks to have the documents which may have information that would aid in his defence as he claims not to have had access to the system at the time the alleged fraud was committed.
The evidence presently before me supports the plaintiff's position on custody. The plaintiff’s digital-forensics witness states that it’s access to IFMIS granted by the National Treasury was a read-only which he used to access and retrieve transactions information requested by the investigators. The plaintiff has disclosed the extracts it says were retrieved. There is no material before the court showing that the same account permits the plaintiff to access or download the system's back-end architecture.
The 4 th defendant is correct that the plaintiff has extensive investigative powers and that a public investigator is expected to pursue relevant evidence. That may be so but it does not mean that every record held by another State organ placed in the plaintiff's possession or legal control. Investigative capacity and custody for purposes of compulsory production are not the same thing. If the plaintiff did not go further beyond retrieving what was allowed by the systems, the court cannot assume that it has the custody and control of the documents or information the 4 th defendant is calling for.
Whether the plaintiff should have requested additional technical material from the National Treasury may be relevant to the defendant’s defence but this court has no jurisdiction in a matter of this nature to compel the plaintiff to extend its investigations beyond what it desired. The case belongs to the plaintiff and it is upon it to present the evidence it deems enough to prove it.
The authorities the 4 th defendant has urged this court to consider do not lead to a different result. For instance, in Elizabeth Chebii & another v Japhet Nyambegi, Ocs Langas Police Station & another; National Police Service Commission & another (Interested Parties) [2021] KEHC 1153 (KLR) which unlike the matter before me was a constitutional petition, the court found that the identified documents were, by their nature, in the possession of the persons served. That factual foundation is absent in the instant case.
The other authorities cited by the 4 th defendant are clearly distinguishable from the instant application. In the case of Property Priority Limited v Embakasi Properties Limited & 5 others [2025] KEELC 6977 (KLR) , the applicants were seeking leave to produce additional documents which were ordinarily in custody of public officers. It had nothing to do with compelling the plaintiff to produce any documents.
In the cited Kosgey & another v Kosgey & 3 others [2025] KEELC 477 (KLR) , the plaintiff sought for leave to call the 3 rd defendant (a Lands Registrar) who was a common witness to produce documents which had already been listed in a notice to produce served upon the plaintiff. This scenario is different from the current situation where the 4 th defendant is seeking to compel the plaintiff to produce a document which has not been established to be in its custody. This authority would be relevant if the issue before me was an application to call an officer from the National Treasury to produce the document the 4 th defendant is seeking. In the present matter, the National Treasury is said to be the custodian but it was not the person served with the notice.
There are other forums and avenues for the 4 th defendant to obtain the documents he seeks in the notice to produce. He has submitted that under Article 35 of the Constitution, he is entitled to access to information. That position is correct but cannot be invoked in the manner the 4 th defendant has proposed. There is a procedure provided for in the Access to Information Act which must be followed before a party invokes the court to compel supply of information. In any case, the National Treasury which is the custodian of the requested document is not a party to these proceedings.
The 4 th defendant has asked this court to in the alternative infer an adverse inference against the plaintiff. This cannot fairly be drawn at this stage. Before a court can do that, there must be a proper basis for finding that the information or document exists, it is material, it is within that party's possession or power and has been withheld without satisfactory explanation. Those elements have not been established against the plaintiff in relation to the architecture described in the notice and in any case, such an inference can only be done after or during a full hearing once the court establishes materiality and nature of the omitted evidence.
The 4 th defendant has also submitted and asked the court to in the alternative issue summons the Cabinet Secretary or Principal Secretary in the National Treasury. This request is not in the notice to produce that we are dealing with and even if it were, the issue cannot be dealt with at this stage. The 4 th defendant will be at liberty to make a proper application for witness summons when the time for defending himself comes.
The conclusion of what I have discussed above is that, the notice as framed and directed against the plaintiff, has not established that the requested architecture is a sufficiently identified document in the plaintiff's possession, custody or control. For the foregoing reasons, the 4 th defendant's notice to produce dated 30 th September 2025 is disallowed. The costs of these proceedings shall be in the cause.
Dated signed and delivered at Nairobi this 18 th day of September 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of;
Mr. Miss Kibogy for the plaintiff;
Mr. Muriuki for the 4 th defendant
Miss Wamaatu holding brief for Mr. Mola for the 2 nd , 3 rd and 5 th defendants; and
Mr. Ndege holding brief for Mr. Kaimenyi for the 1 st defendant.
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By the plaint dated 11 th April 2025, the plaintiff seeks recovery of Kshs 14,851,939.65 which it alleges was paid by the Nairobi City County Government (hereinafter referred to as ‘the government’) to the 1 st defendant between 21 st July 2021 and 26 th July 2021 for goods that were never supplied. The plaintiff's case is that the payments were processed through IFMIS by public officers who did not verify the supporting procurement and delivery documents and the defendants participated in the payments in different ways and stages.
The 4 th defendant filed a defence denying participation in fraud, collusion or breach of duty. His case is that at the material time, he had been transferred from the government to the Nairobi Metropolitan Services and did not have physical or operational access to the office or the IFMIS. He admits that an IFMIS user number had previously been allocated to him but denies using it to approve the impugned transaction. The 4 th defendant contends that the continued appearance of his credentials in the system does not prove that he personally accessed or operated the account. He alleges that the responsible information and communication technology officers did not deactivate his credentials after his transfer. He also denies any dealings with the 1 st defendant and states that, if his credentials were used, the use was without his authority.
It is against that defence that, the 4 th defendant seeks the IFMIS payment-data architecture. His position is that the structure of the system, its access controls and its audit trail are necessary to determine whether the entry attributed to him was made by him, by another person using his credentials or by a person with administrative access.
The plaintiff opposed the notice through grounds of opposition dated 14 th April 2026. It avers that the notice proceeds on a false premise that the plaintiff administers IFMIS. It states that its read-only access permits retrieval of transaction information visible at the user interface but does not grant access to or control over the system's back-end architecture.
It is notable that the plaintiff has filed documentary material and witness statements in support of its suit. Of relevance to this ruling is the statement of a senior investigation officer in digital forensics. The witness states that the plaintiff was granted read-only access to IFMIS by the National Treasury through a letter dated 1 st March 2017 referenced as MOF/IFMIS/1/28 ‘E’/40. Acting on a request from the plaintiff's investigations department, he accessed the system through that read-only account and extracted transaction information concerning payments made by the government.
The plaintiff states that it has disclosed the IFMIS extracts available to it, including the transaction records appearing in its filed bundles. Its position is that its access is confined to the front-end user interface and does not extend to system administration, source architecture, database design or the back-end data structure controlled by the National Treasury.
Analysis and determination
The notice was argued by way of written submissions. I have read the 4 th defendant’s submissions dated 18 th May 2026 and further submissions dated 26 th May 2026. I have also read and considered the plaintiff’s submissions dated 25 th May 2026. I have also gone through and considered the authorities cited by the parties.
The 4 th defendant submits that the architecture and data structure are central to the plaintiff's allegation that he approved the payment. He argues that a proper forensic investigation should identify how IFMIS assigns credentials, authenticates users, records access, deactivates transferred officers and attributes a transaction to a particular person. In his view, the plaintiff cannot rely on a system-generated entry without disclosing the system by which that entry was created and attributed. He adds that the documents he asked for are public documents which the plaintiff as a public investigative body cannot claim not have access to as it is capable of obtaining and producing them.
The plaintiff argues that an order for production can only be directed at a person who has possession, custody or legal control of the document or information sought. It maintains that the National Treasury is the entity that manages IFMIS and that the architecture requested by the 4 th defendant is not among the records supplied to it or capable of being generated through its read-only account. It adds that it has disclosed the transaction extracts in its possession and has presented a witness who will explain the nature of its access, the extraction process and the records generated. It submits that the 4 th defendant will be at liberty to cross-examine that witness and to challenge the evidential value of the IFMIS entries at the trial.
For a notice to produce to be effectively enforced, the documents in question must be sufficiently identified and proved to exist. The court must also be satisfied that the documents are in the possession, power or control of the person from whom production is sought. A notice cannot demand a document that does not exist neither can it transfer custody from the actual holder to a party who merely has an interest in or limited access to the repository of the documents. These conditions are satisfied if the issuer of the notice demonstrates that they are in possession of secondary evidence of the documents. That is the purport of Sections 68 and 69 of the Evidence Act.
It was held in Lunani & another (Suing as the Executors of the Will of the Late Stephan Lunani Walela) v Carlsberg International Limited & 4 others [2023] KEELC 22190 (KLR) that;
‘ If it does not exist , the adverse party cannot be compelled to give it because it is not in existence. He cannot have power or possession of a non-existent document. Again, the law did not contemplate the compulsion of the other party to produce an original: rather the party claiming that the original exists is permitted to produce the secondary document thereof upon satisfaction of Section 68 of the Act.’
The position I have taken above was also adopted by Honourable Lady Justice L.M. Njuguna (as she then was) in Ethics & Anti-Corruption Commission v Ahaza & 12 others [2025] KEHC 9036 (KLR) where she held that;
‘My understanding of a Notice to produce documents is that it relates to production of secondary evidence in the hands of a party and it has nothing to do with production of primary evidence. A notice to produce documents can only be issued if the party issuing the same is in possession of a copy/copies of the documents that he is seeking to have the other party produce but not the way the 1 st defendant is doing it in his Notice to produce.
In this case, I note that the documents that the 1 st defendant is seeking to have the plaintiff produce are documents that one would expect to be in possession of the County Government of Vihiga and not the Plaintiff and it is for this reason that when the 1 st defendant requested for them, the plaintiff wrote to the said County Government requesting for the documents. The plaintiff has annexed letters from the said County Government indicating that the documents are not available.
In view of the contents of those letters and in the absence of any evidence from the 1 st defendant that the said documents exist and that they are in possession of the plaintiff, I am prepared to find and which I hereby do, that the 1 st defendant has not satisfied the court that the plaintiff is in possession of the said documents. And for that reason, this court cannot compel the plaintiff to produce documents which are not in its possession.’
The 4 th defendant’s notice to produce calls for what it refers to as ‘architecture for IFMIS payment data structure for transactions.’ It does not identify a particular document by title, date, author, version, module or repository. I may be wrong but it appears to me that what is being asked for is the entire architecture or structure without limitations to the transactions in question. What is clear is that the 4 th defendant seeks to have the documents which may have information that would aid in his defence as he claims not to have had access to the system at the time the alleged fraud was committed.
The evidence presently before me supports the plaintiff's position on custody. The plaintiff’s digital-forensics witness states that it’s access to IFMIS granted by the National Treasury was a read-only which he used to access and retrieve transactions information requested by the investigators. The plaintiff has disclosed the extracts it says were retrieved. There is no material before the court showing that the same account permits the plaintiff to access or download the system's back-end architecture.
The 4 th defendant is correct that the plaintiff has extensive investigative powers and that a public investigator is expected to pursue relevant evidence. That may be so but it does not mean that every record held by another State organ placed in the plaintiff's possession or legal control. Investigative capacity and custody for purposes of compulsory production are not the same thing. If the plaintiff did not go further beyond retrieving what was allowed by the systems, the court cannot assume that it has the custody and control of the documents or information the 4 th defendant is calling for.
Whether the plaintiff should have requested additional technical material from the National Treasury may be relevant to the defendant’s defence but this court has no jurisdiction in a matter of this nature to compel the plaintiff to extend its investigations beyond what it desired. The case belongs to the plaintiff and it is upon it to present the evidence it deems enough to prove it.
The authorities the 4 th defendant has urged this court to consider do not lead to a different result. For instance, in Elizabeth Chebii & another v Japhet Nyambegi, Ocs Langas Police Station & another; National Police Service Commission & another (Interested Parties) [2021] KEHC 1153 (KLR) which unlike the matter before me was a constitutional petition, the court found that the identified documents were, by their nature, in the possession of the persons served. That factual foundation is absent in the instant case.
The other authorities cited by the 4 th defendant are clearly distinguishable from the instant application. In the case of Property Priority Limited v Embakasi Properties Limited & 5 others [2025] KEELC 6977 (KLR) , the applicants were seeking leave to produce additional documents which were ordinarily in custody of public officers. It had nothing to do with compelling the plaintiff to produce any documents.
In the cited Kosgey & another v Kosgey & 3 others [2025] KEELC 477 (KLR) , the plaintiff sought for leave to call the 3 rd defendant (a Lands Registrar) who was a common witness to produce documents which had already been listed in a notice to produce served upon the plaintiff. This scenario is different from the current situation where the 4 th defendant is seeking to compel the plaintiff to produce a document which has not been established to be in its custody. This authority would be relevant if the issue before me was an application to call an officer from the National Treasury to produce the document the 4 th defendant is seeking. In the present matter, the National Treasury is said to be the custodian but it was not the person served with the notice.
There are other forums and avenues for the 4 th defendant to obtain the documents he seeks in the notice to produce. He has submitted that under Article 35 of the Constitution, he is entitled to access to information. That position is correct but cannot be invoked in the manner the 4 th defendant has proposed. There is a procedure provided for in the Access to Information Act which must be followed before a party invokes the court to compel supply of information. In any case, the National Treasury which is the custodian of the requested document is not a party to these proceedings.
The 4 th defendant has asked this court to in the alternative infer an adverse inference against the plaintiff. This cannot fairly be drawn at this stage. Before a court can do that, there must be a proper basis for finding that the information or document exists, it is material, it is within that party's possession or power and has been withheld without satisfactory explanation. Those elements have not been established against the plaintiff in relation to the architecture described in the notice and in any case, such an inference can only be done after or during a full hearing once the court establishes materiality and nature of the omitted evidence.
The 4 th defendant has also submitted and asked the court to in the alternative issue summons the Cabinet Secretary or Principal Secretary in the National Treasury. This request is not in the notice to produce that we are dealing with and even if it were, the issue cannot be dealt with at this stage. The 4 th defendant will be at liberty to make a proper application for witness summons when the time for defending himself comes.
The conclusion of what I have discussed above is that, the notice as framed and directed against the plaintiff, has not established that the requested architecture is a sufficiently identified document in the plaintiff's possession, custody or control. For the foregoing reasons, the 4 th defendant's notice to produce dated 30 th September 2025 is disallowed. The costs of these proceedings shall be in the cause.
Dated signed and delivered at Nairobi this 18 th day of September 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of;
Mr. Miss Kibogy for the plaintiff;
Mr. Muriuki for the 4 th defendant
Miss Wamaatu holding brief for Mr. Mola for the 2 nd , 3 rd and 5 th defendants; and
Mr. Ndege holding brief for Mr. Kaimenyi for the 1 st defendant.
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