THE APPLICANT’S CASE
The plaintiff prays that that this Honourable Court be pleased to issue an Order compelling the 1st and 2nd Defendants/Respondents, being the Directors and Trustees of AIDS40RPHANS, to within Thirty (30) days from the date hereof, produce before this Honourable Court full and verifiable financial records relating to the mortgage facility obtained for the acquisition of land known as MOMBASA/MS/BLOCK 1/1596, being land purchased for the benefit and use of the Child of Mercy Children's Home and in particular The complete mortgage account statements from the date the said facility was opened to date, showing all credits, debits, and running balances. Moreover, the plaintiff prays that this court orders the defendants to produce the corresponding bank statements of the account(s) into which donor funds under the Child of Mercy Donor Initiative were received, showing deposits, transfers, or any remittances applied toward servicing the said mortgage any documentary evidence of remittances or transfers made from the donor accounts or AIDS40RPHANS accounts to the mortgage account, whether directly or through intermediary accounts; and Auditor's reports, reconciliation statements.
The application is supported by the affidavit of Jessica Opisa Ombeva and the grounds that this application is necessitated by the urgent need to safeguard the interests of the minors residing at the Child of Mercy Children's Home (COMOC), whose only home, the land in dispute was purchased and financed through donations expressly made by well-wishers and charitable donors for their benefit. The said land was identified and purchased by the 1st and 2nd Defendants, acting as trustees/directors of Aids40rphans (a UK-based charitable organization), on behalf of the children's home, through a mortgage facility obtained in their names solely for administrative convenience and financing eligibility, as the home, being newly established in Kenya, could not itself qualify for such a facility.
The applicant states that it was expressly agreed between the parties, and publicly represented by the Defendants, that the funds received from donors under the "Child of Mercy Donor Initiative" would be applied toward servicing the said mortgage, and upon full payment, the land would be transferred to or held in trust for the benefit of the children.
She asserts that since the acquisition of the land, donor contributions collected through AIDS40RPHANS have continuously been applied toward the repayment of the mortgage facility, as confirmed in official minutes of the Child of Mercy Committee (COMOC) wherein the 1st Defendant expressly acknowledged that the mortgage has at all material times been serviced by donor funds received on behalf of the children's home and not from his personal income or resources. Despite, this clear admission, the Defendants have since altered their position and now deny that donor funds were used to service the mortgage, seeking instead to portray the land as their personal property and threatening to sell or otherwise dispose of the same thereby depriving the minors of their only home and shelter.
The Applicant, as the Founder and lawful representative of the children's home, is apprehensive that unless this Honourable Court compels full production of the mortgage and bank account statements, the Defendants will continue concealing the true source of the funds used to finance the property, frustrating both judicial determination and the minors' constitutional right to protection under Article 53(1)(c) of the Constitution of Kenya.
The applicant contends that the Defendants' refusal to produce the bank and mortgage records, coupled with their shifting narrative, gives rise to a legitimate fear of financial impropriety, misrepresentation, and a possible scheme to misappropriate donor funds entrusted for the children's welfare and therefore the only means of verifying the financial trail from donor remittances received by Aids40rphans to the mortgage repayments made in the United Kingdom is through the compelled production of the complete mortgage and bank statements, together with any related documentation evidencing the movement of such funds.
The applicant believes that the disclosure sought will demonstrate beyond doubt that the land in question was paid for through donor monies, and that the Defendants hold the property in a fiduciary capacity for the children's benefit, and not as personal owners or investors.
The Applicant urges that the Defendants' current position is calculated to defraud the minors and the charitable donors by diverting property and funds intended for the children's welfare to private use, contrary to the principles of trust, good faith, and accountability. The Applicant and the beneficiaries being minors stand to suffer grave and irreparable loss should the Defendants dispose of or encumber the said property, as the land constitutes their only home and the physical embodiment of years of global donor goodwill. That transparency and accountability are cardinal principles in the management of charitable funds, and the Respondents' refusal to produce the records offends both public interest and the regulatory expectations under UK and Kenyan charity governance standards.
According to the plaintiff, compelling the Respondents to produce the bank and mortgage statements will not prejudice them in any manner, but will instead enable this Honourable Court to do justice hence it is in the interest of justice, equity, and child protection that this Honourable Court grants the orders sought herein, compelling full disclosure of the said financial records, so as to establish the rightful beneficial ownership of the land and prevent the minors' dispossession.
RESPONDENTS CASE
The respondents filed a replying affidavit sworn by Peter William Bragg an adult of sound mind and a resident of 25 Lusty Glaze Rd, Newquay, United Kingdom TR73AE, stating that it is not the duty of the Court to aid a party to secure information to aid its case. The respondent states that the Plaintiff/Applicant's application is misconceived and an abuse of the court o process calculated to prejudice the fair and orderly conduct of these proceedings, because a party cannot apply for discovery after pleadings have closed,
According to the respondent, it is trite to highlight that the issue in dispute presented to the Honorable Court through the Plaint as filed was in respect of the Plaintiff/Applicant's use and possession of the suit premises and not acquisition of the suit property which is the inference drawn from the intent of the Instant application.
The Respondents had already provided all relevant documents in their Bundle of Documents filed in the suit herein, which contained copies of documents to substantiate the context and nature of relationship created between the Defendants/Respondents and Plaintiff/Applicant.
Contrary to the allegations by the Applicant, the 1st and 2nd Defendant/Respondent are the registered proprietors of Title No. MOMBASA/MS/BLOCK 1/1596 having purchased it on 9 August 2012 from Andrew Kamau Thuo and Elizabeth Anyango Awimbo.
The 1st and 2nd Defendant/Respondents purchased the suit property using their own personal finances and through a bank borrowing arrangement in the United Kingdom. Upon paying the consideration to the above-mentioned vendors the transfer of lease was registered in the 1st and 2nd Defendant's names as joint tenants. There was no involvement from any charity or third party, including AID40RPHANS in the acquisition of the suit property as alleged by the Plaintiff/Applicant in her Supporting Affidavit to the Instant Application,
The Defendants have no knowledge of any initiative or account titled "Child of Mercy Donor Initiative" and have never represented that such funds would be used for mortgage payments or property transfer. No agreement has been made between any such parties as alleged. The Plaintiff/Applicant has not produced any documentary evidence to support these claims.
The mortgage for the said property in question is being serviced solely through the Ist and 2nd Defendant/Respondent's personal bank account and not through any charity as confirmed by a letter from an independent auditor.
The 1st and 2nd Defendant/Respondent categorically deny the contention that they expressly confirmed in recorded minutes that donor funds received on behalf of COMOC were to be, and have been, used to service the mortgage.
The Defendants categorically deny that any meeting of the COMOC committee took place on 13 November 2020. At the material time, the Defendants were present in the United Kingdom and subject to an official national Coronavirus lockdown, which rendered any such meeting impossible this is a matter of judicial notice.
The documents sought by the Plaintiff/Applicant are held by third-party entities, who are not a parties to the instant suit, and it follows that the 1st and 2nd Defendant/Respondents cannot be compelled to produce documents which are not contemplated to be in their custody, in the first place as they cannot produce what they do not have.
The Plaintiff/Applicant's Notice to produce and the Instant Application are legally untenable offending the principles governing discovery and production of documents thus amounting to an abuse of the court process. On the 2nd of February, 2026 in the presence of both parties, directions were made for the filing of submissions. The applicant did not file submissions as directed but the respondent complied.
RESPONDENTS SUBMISSIONS
The defendant/respondent submits that the application is substantially anchored on allegations concerning the welfare of children, alleged violation of children's rights, safeguarding of minors and donor accountability in the context of child protection and therefore these issues fall squarely within the remit of the Children Act, 2022 and are reserved for the Children's Court and statutory child protection mechanisms not the Environment and Land Court. According to the respondent, the jurisdiction of the Environment and Land Court is derived from Article 162(2)(b) of the Constitution and is operationalized under Section 13 of the Environment and Land Court Act. The Court is limited to disputes relating to; title to land, use and occupation of land and interests in land. The 1st and 2nd Defendant/Respondents' submits that Jurisdiction is the cornerstone of judicial authority. Without it, a court must down its tools. This principle was settled in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [19891 KLR 1.
It is apt to note that the yardstick has been set in law with an authoritative holding wherein the court opined as thus:
"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. "
The respondent cites the Supreme Court decision in Republic v Karisa Chengo 2 Others POI 71 eKLR where it pronounced itself by holding that specialized courts can only exercise jurisdiction donated by the Constitution and statute, they cannot arrogate to themselves matters outside their mandate.
"although the High Court and the specialized Courts are of the same status... z they are different Courts, " judges appointed thereto "exercise varying jurisdictions, depending upon the particular Courts to which they were appointed. "
Cause of Action and Jurisdiction are inseparable.
The respondent cites the case of Phoenix of EA Assurance Company Limited v S.M. Thiqa t/a Newspaper Service 1201 91 eKLR, the Court of Appeal held that proceedings founded on a jurisdictional defect are a nullity and cannot be cured by ingenuity, consent or procedural craft. It was held:-
"You cannot change your cause of action through an application and expect the court's jurisdiction to follow you. Jurisdiction follows the plaint, not the motion. "
According to the respondent, it is trite law that jurisdiction flows from the pleaded cause of action, not from the reliefs craftily framed in interlocutory applications. A court can only exercise jurisdiction over the dispute as pleaded in the plaint distancing itself over collateral or extraneous matters introduced midstream through applications. The Applicant's cause of action as pleaded falls within the Environment and Land Court's jurisdiction; purely on matters occupation and use of the suit land as outlined and governed by the valid lease agreement.
The respondent further refers to the case of Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 Others 120141 eKLR, the Court of Appeal stated:
"The parties are bound by their pleadings, and any evidence or submissions that do not support the pleaded case must be disregarded."
And the case of Raila Amolo Odinqa & Another v IEBC & 2 Others [201 71 el(LR, the Supreme Court reaffirmed that Courts must determine disputes strictly on the basis of the issues arising from the pleadings before them.
“In circumstances a party abandons its pleaded cause of action in the filed Plaint and seeks to litigate a different dispute altogether, craftily in interlocutory z Applications, the Court is divested of jurisdiction over the new matter. This principle was succinctly captured in Owners of the Motor Vessel "Lillian S" (cited above), where the Court held that once a court determines it lacks jurisdiction, it must "down its tools."
This Honourable Court is therefore urged by the respondent to strike out or disregard all averments and arguments in the application relating to the welfare or protection of children, financial, banking, mortgage, charity and donor records for want of jurisdiction.
On discovery of documents, the respondent submits that the threshold for production of documents has not been demonstrated.
The Plaintiff/Applicant has failed to demonstrate relevance, necessity, possession or proportionality. The Application is therefore a textbook fishing expedition which the courts have consistently declined to sanction.
The respondent relies on Trust Bank Limited v Aiay Shah & 3 others [20121 eKLR, where the Court held that discovery must be proportionate and connected to the real issue in dispute. According to the respondent, Sections 107-109 of the Evidence Act (Cap 80) places the burden of proof on the party who asserts a fact. Discovery cannot be invoked to shift this burden or to enable a party to construct a case it has not pleaded.
The respondent further cites the case of Kipkebe Limited v Peterson Ondieki Tai 120161 eKLRi where the Court of Appeal held that Discovery is not intended to enable a party to fish for evidence or to make a case against the other party where no case exists. The Courts have declined to compel production where the documents sought were not shown to be directly relevant to the pleaded issues as well as borne out of the cause of action.
In Uhuru Highway Development Ltd v Central Bank of Kenya 120021 2 EA 654, the Court warned that discovery should not degenerate into an oppressive fishing expedition wherein stating that Courts must guard against allowing wide and speculative disclosure requests. In Trust Bank Limited case, the High Court refused to compel disclosure of extensive financial documents, holding that "Discovery must be proportionate and confined to documents which are necessary for the fair disposal of the matter.
Courts have repeatedly held that discovery must be anchored to the pleadings, not to collateral allegations raised through applications wherein documents are sought to support un-pleaded allegations, courts decline production.
The respondent cites the case of Independent Electoral and Boundaries Commission v Stephen Mutinda Mule 3 Others f20141 eKLR, the Court of Appeal stated:
"The parties are bound by their pleadings, and evidence which does not support the pleaded case must be disregarded."
The respondent contends that courts have declined production where disclosure would violate confidentiality or privacy without sufficient justification whereas the Data LU Protection Act, 201 9 imposes obligations against indiscriminate disclosure of personal and financial data and that it is settled law that discovery and production of documents under the Civil Procedure Rules are inter partes processes applicable only between parties properly before the Court. Aid-4-orphans, a UK-registered charitable organization referenced by the Plaintiff/Applicant is not a party to these proceedings, neither has it been joined as a Defendant nor Interested Party thus cannot be subjected to the jurisdiction of this Honourable Court.
In Nairobi City County v Thabiti Enterprises Ltd 120191 eKLR, the Court declined as well to compel production of documents belonging to non-parties holding that such orders offend principles of fairness and due process. Discovery binds parties, not strangers wherein a foreign charity cannot be dragged into proceedings through the back door of a Notice to Produce.
ANALYSIS AND DETERMINATION
I have considered the Application, the response filed and submissions made on behalf of the parties as well as the decisions relied on. The Application before court is for discovery and production of documents as prayed in the notice of motion.
The Applicant’s case is that necessitated by the urgent need to safeguard the interests of the minors residing at the Child of Mercy Children's Home (COMOC), whose only home, the land in dispute was purchased and financed through donations expressly made by well-wishers and charitable donors for their benefit,
That the said land was identified and purchased by the 1st and 2nd Defendants, acting as trustees/directors of AIDS40RPHANS (a UK-based charitable organization), on behalf of the children's home, through a mortgage facility obtained in their names solely for administrative convenience and financing eligibility, as the home, being newly established in Kenya, could not itself qualify for such a facility.
Whether or not the court should order discovery and production of documents is a matter of discretion to be exercised in a judicious manner for purposes of fostering justice of the case.
The respondent submits that this court has no jurisdiction to entertain the application because the application is substantially anchored on allegations concerning the welfare of children, alleged violation of children's rights, safeguarding of minors and donor accountability in the context of child protection and therefore these issues fall squarely within the remit of the Children Act, 2022 and are reserved for the Children's Court and statutory child protection mechanisms not the Environment and Land Court. This argument is misconceived as the applicant seeks the production of documents to enable her prosecute her case properly. The applicant concedes that this court has the jurisdiction to entertain the suit and therefore cannot argue that the court has no jurisdiction to entertain the application. Moreover, there is no cause of action in the application as the cause of action is in the suit.
On whether the court can compel the production of documents, Section 22 of the Civil Procedure Act states:-
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 party-
a.Make such orders as may be necessary or reasonable in all matters relating to the delivering and answering of interrogatories, the admission of documents and facts and the discovery and inspection, production, impounding and return of documents or other material objects producible as evidence. The court has the power to summon any person to produce such documents or adduce evidence as the case may be.
Discovery is a formal pre-trial process through which a party to litigation may seek to discover evidence and facts that are crucial to his case, and as can be seen from section 22, the scope of discovery is quite broad. A party may seek to discover any fact that is not privileged but is relevant to the subject matter in the suit. The emphasis should be that the documents sought are relevant to the issue before the court.
The treatise of Halsbury Laws of England Vol 13 state at paragraph 38 that, discovery will not be ordered in respect of irrelevant allegations in the pleadings, which even if substantiated could not affect the result of the action nor in respect of an allegation not made in the pleadings or particulars, nor will discovery be allowed to enable a party to fish for witnesses or for a new case, that is to enable him start a new case.
Regarding the centrality of discovery, the court observed in Oracle Productions Ltd v Decapture Ltd & 3 Others [2014] eKLR that pre-trial discovery is so central to litigation that the entire Order 11 of Civil Procedure Rules (2010) has substantially devoted to it, including sanctions for non- compliance. Orders 4 and 7 now require parties to file and serve documentary evidence with their pleadings, while Order 14 empowers the Court to order production, impounding and return of documents. Discovery should be limited solely to matters in contention and relevance will only be gauged or tested by pleadings or particulars provided. It should be added that discovery is also intended to aid a party access vital documents to his case that are solely in the custody of the opposite party, thus levelling the litigation ground.
(Ramji Megji v Kisii University [2016] eKLR). The court emphasized in Concord Insurance Co. LTD v NIC Bank Ltd [2013] eKLR that only relevant documents should be disclosed and that relevance is to be tested in the pleadings, and that discovery should not be used as a fishing expedition.
In M. L. Sethi vs R. P. Kapur, 1972 AIR 2379, 1973 SCR (1) 697, the Supreme Court of India observed that: The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trail of enquiry which may have either of these two consequences.
As held in Lustman & Company (1990) Limited v Corporate Business Centre Limited & 4 others (Civil Suit 311 of 2018) [2022] KEHC 42 (KLR) (Commercial and Tax) (4 February 2022) by Justice Mwita as he then was if a document would throw light on the matter in dispute, the discovery of that document would be considered relevant even though the document may be inadmissible in evidence in the long run. It is the relevance of the document and not its admissibility that matters.
From the decisions referred to above, the main aim of discovery and production of documents is to uphold the case of the party seeking discovery and production and in order to destroy or weaken the opponent’s case. In that regard, for a party to succeed in getting order for discovery or production, he has a duty to establish that the discovery is aimed at fair disposal of the matter. The party must also show that the facts to be elicited will assist in establishing his case.
The Applicant has sought several documents it says will assist it prosecute its case. The core of the Applicant’s case is that the property in dispute was purchased by funds from donors and therefore he wants to prove the same. The respondent response is that the applicants are on a fishing expedition and that they do not have the documents sought and the documents sought to be produced are not relevant.
I am satisfied that the documents sought to be discovered are relevant to the dispute before court. In the end, the Applicant has succeeded in persuading the court that it is entitled to discover documents it seeks, and that this court is satisfied that those documents are relevant to the matters in question in this suit.
Consequently, the Application dated 28th May 2021 is allowed. The Respondents are hereby ordered to produce and serve the Applicant certified copies of the documents sought in the Amended Notice to produce dated 11th November 2025 namely; full and verifiable financial records relating to the mortgage facility obtained for the acquisition of land known as MOMBASA/MS/BLOCK 1/1596, being land purchased for the benefit and use of the Child of Mercy Children's Home and in particular and the complete mortgage account statements from the date the said facility was opened to date, showing all credits, debits, and running balances. Moreover, the defendants are hereby ordered to produce the corresponding bank statements of the account(s) into which donor funds under the Child of Mercy Donor Initiative were received, showing deposits, transfers, or any remittances applied toward servicing the said mortgage any documentary evidence of remittances or transfers made from the donor accounts or AIDS40RPHANS accounts to the mortgage account, whether directly or through intermediary accounts; and Auditor's reports, reconciliation statements.
The documents to be filed within 30 days from the date of this Ruling. Costs of the Application be in the cause. Orders accordingly. Matter cannot proceed as scheduled. Mention today at 2.00pm.
The plaintiff prays that that this Honourable Court be pleased to issue an Order compelling the 1st and 2nd Defendants/Respondents, being the Directors and Trustees of AIDS40RPHANS, to within Thirty (30) days from the date hereof, produce before this Honourable Court full and verifiable financial records relating to the mortgage facility obtained for the acquisition of land known as MOMBASA/MS/BLOCK 1/1596, being land purchased for the benefit and use of the Child of Mercy Children's Home and in particular The complete mortgage account statements from the date the said facility was opened to date, showing all credits, debits, and running balances. Moreover, the plaintiff prays that this court orders the defendants to produce the corresponding bank statements of the account(s) into which donor funds under the Child of Mercy Donor Initiative were received, showing deposits, transfers, or any remittances applied toward servicing the said mortgage any documentary evidence of remittances or transfers made from the donor accounts or AIDS40RPHANS accounts to the mortgage account, whether directly or through intermediary accounts; and Auditor's reports, reconciliation statements.
The application is supported by the affidavit of Jessica Opisa Ombeva and the grounds that this application is necessitated by the urgent need to safeguard the interests of the minors residing at the Child of Mercy Children's Home (COMOC), whose only home, the land in dispute was purchased and financed through donations expressly made by well-wishers and charitable donors for their benefit. The said land was identified and purchased by the 1st and 2nd Defendants, acting as trustees/directors of Aids40rphans (a UK-based charitable organization), on behalf of the children's home, through a mortgage facility obtained in their names solely for administrative convenience and financing eligibility, as the home, being newly established in Kenya, could not itself qualify for such a facility.
The applicant states that it was expressly agreed between the parties, and publicly represented by the Defendants, that the funds received from donors under the "Child of Mercy Donor Initiative" would be applied toward servicing the said mortgage, and upon full payment, the land would be transferred to or held in trust for the benefit of the children.
She asserts that since the acquisition of the land, donor contributions collected through AIDS40RPHANS have continuously been applied toward the repayment of the mortgage facility, as confirmed in official minutes of the Child of Mercy Committee (COMOC) wherein the 1st Defendant expressly acknowledged that the mortgage has at all material times been serviced by donor funds received on behalf of the children's home and not from his personal income or resources. Despite, this clear admission, the Defendants have since altered their position and now deny that donor funds were used to service the mortgage, seeking instead to portray the land as their personal property and threatening to sell or otherwise dispose of the same thereby depriving the minors of their only home and shelter.
The Applicant, as the Founder and lawful representative of the children's home, is apprehensive that unless this Honourable Court compels full production of the mortgage and bank account statements, the Defendants will continue concealing the true source of the funds used to finance the property, frustrating both judicial determination and the minors' constitutional right to protection under Article 53(1)(c) of the Constitution of Kenya.
The applicant contends that the Defendants' refusal to produce the bank and mortgage records, coupled with their shifting narrative, gives rise to a legitimate fear of financial impropriety, misrepresentation, and a possible scheme to misappropriate donor funds entrusted for the children's welfare and therefore the only means of verifying the financial trail from donor remittances received by Aids40rphans to the mortgage repayments made in the United Kingdom is through the compelled production of the complete mortgage and bank statements, together with any related documentation evidencing the movement of such funds.
The applicant believes that the disclosure sought will demonstrate beyond doubt that the land in question was paid for through donor monies, and that the Defendants hold the property in a fiduciary capacity for the children's benefit, and not as personal owners or investors.
The Applicant urges that the Defendants' current position is calculated to defraud the minors and the charitable donors by diverting property and funds intended for the children's welfare to private use, contrary to the principles of trust, good faith, and accountability. The Applicant and the beneficiaries being minors stand to suffer grave and irreparable loss should the Defendants dispose of or encumber the said property, as the land constitutes their only home and the physical embodiment of years of global donor goodwill. That transparency and accountability are cardinal principles in the management of charitable funds, and the Respondents' refusal to produce the records offends both public interest and the regulatory expectations under UK and Kenyan charity governance standards.
According to the plaintiff, compelling the Respondents to produce the bank and mortgage statements will not prejudice them in any manner, but will instead enable this Honourable Court to do justice hence it is in the interest of justice, equity, and child protection that this Honourable Court grants the orders sought herein, compelling full disclosure of the said financial records, so as to establish the rightful beneficial ownership of the land and prevent the minors' dispossession.
RESPONDENTS CASE
The respondents filed a replying affidavit sworn by Peter William Bragg an adult of sound mind and a resident of 25 Lusty Glaze Rd, Newquay, United Kingdom TR73AE, stating that it is not the duty of the Court to aid a party to secure information to aid its case. The respondent states that the Plaintiff/Applicant's application is misconceived and an abuse of the court o process calculated to prejudice the fair and orderly conduct of these proceedings, because a party cannot apply for discovery after pleadings have closed,
According to the respondent, it is trite to highlight that the issue in dispute presented to the Honorable Court through the Plaint as filed was in respect of the Plaintiff/Applicant's use and possession of the suit premises and not acquisition of the suit property which is the inference drawn from the intent of the Instant application.
The Respondents had already provided all relevant documents in their Bundle of Documents filed in the suit herein, which contained copies of documents to substantiate the context and nature of relationship created between the Defendants/Respondents and Plaintiff/Applicant.
Contrary to the allegations by the Applicant, the 1st and 2nd Defendant/Respondent are the registered proprietors of Title No. MOMBASA/MS/BLOCK 1/1596 having purchased it on 9 August 2012 from Andrew Kamau Thuo and Elizabeth Anyango Awimbo.
The 1st and 2nd Defendant/Respondents purchased the suit property using their own personal finances and through a bank borrowing arrangement in the United Kingdom. Upon paying the consideration to the above-mentioned vendors the transfer of lease was registered in the 1st and 2nd Defendant's names as joint tenants. There was no involvement from any charity or third party, including AID40RPHANS in the acquisition of the suit property as alleged by the Plaintiff/Applicant in her Supporting Affidavit to the Instant Application,
The Defendants have no knowledge of any initiative or account titled "Child of Mercy Donor Initiative" and have never represented that such funds would be used for mortgage payments or property transfer. No agreement has been made between any such parties as alleged. The Plaintiff/Applicant has not produced any documentary evidence to support these claims.
The mortgage for the said property in question is being serviced solely through the Ist and 2nd Defendant/Respondent's personal bank account and not through any charity as confirmed by a letter from an independent auditor.
The 1st and 2nd Defendant/Respondent categorically deny the contention that they expressly confirmed in recorded minutes that donor funds received on behalf of COMOC were to be, and have been, used to service the mortgage.
The Defendants categorically deny that any meeting of the COMOC committee took place on 13 November 2020. At the material time, the Defendants were present in the United Kingdom and subject to an official national Coronavirus lockdown, which rendered any such meeting impossible this is a matter of judicial notice.
The documents sought by the Plaintiff/Applicant are held by third-party entities, who are not a parties to the instant suit, and it follows that the 1st and 2nd Defendant/Respondents cannot be compelled to produce documents which are not contemplated to be in their custody, in the first place as they cannot produce what they do not have.
The Plaintiff/Applicant's Notice to produce and the Instant Application are legally untenable offending the principles governing discovery and production of documents thus amounting to an abuse of the court process. On the 2nd of February, 2026 in the presence of both parties, directions were made for the filing of submissions. The applicant did not file submissions as directed but the respondent complied.
RESPONDENTS SUBMISSIONS
The defendant/respondent submits that the application is substantially anchored on allegations concerning the welfare of children, alleged violation of children's rights, safeguarding of minors and donor accountability in the context of child protection and therefore these issues fall squarely within the remit of the Children Act, 2022 and are reserved for the Children's Court and statutory child protection mechanisms not the Environment and Land Court. According to the respondent, the jurisdiction of the Environment and Land Court is derived from Article 162(2)(b) of the Constitution and is operationalized under Section 13 of the Environment and Land Court Act. The Court is limited to disputes relating to; title to land, use and occupation of land and interests in land. The 1st and 2nd Defendant/Respondents' submits that Jurisdiction is the cornerstone of judicial authority. Without it, a court must down its tools. This principle was settled in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [19891 KLR 1.
It is apt to note that the yardstick has been set in law with an authoritative holding wherein the court opined as thus:
"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. "
The respondent cites the Supreme Court decision in Republic v Karisa Chengo 2 Others POI 71 eKLR where it pronounced itself by holding that specialized courts can only exercise jurisdiction donated by the Constitution and statute, they cannot arrogate to themselves matters outside their mandate.
"although the High Court and the specialized Courts are of the same status... z they are different Courts, " judges appointed thereto "exercise varying jurisdictions, depending upon the particular Courts to which they were appointed. "
Cause of Action and Jurisdiction are inseparable.
The respondent cites the case of Phoenix of EA Assurance Company Limited v S.M. Thiqa t/a Newspaper Service 1201 91 eKLR, the Court of Appeal held that proceedings founded on a jurisdictional defect are a nullity and cannot be cured by ingenuity, consent or procedural craft. It was held:-
"You cannot change your cause of action through an application and expect the court's jurisdiction to follow you. Jurisdiction follows the plaint, not the motion. "
According to the respondent, it is trite law that jurisdiction flows from the pleaded cause of action, not from the reliefs craftily framed in interlocutory applications. A court can only exercise jurisdiction over the dispute as pleaded in the plaint distancing itself over collateral or extraneous matters introduced midstream through applications. The Applicant's cause of action as pleaded falls within the Environment and Land Court's jurisdiction; purely on matters occupation and use of the suit land as outlined and governed by the valid lease agreement.
The respondent further refers to the case of Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 Others 120141 eKLR, the Court of Appeal stated:
"The parties are bound by their pleadings, and any evidence or submissions that do not support the pleaded case must be disregarded."
And the case of Raila Amolo Odinqa & Another v IEBC & 2 Others [201 71 el(LR, the Supreme Court reaffirmed that Courts must determine disputes strictly on the basis of the issues arising from the pleadings before them.
“In circumstances a party abandons its pleaded cause of action in the filed Plaint and seeks to litigate a different dispute altogether, craftily in interlocutory z Applications, the Court is divested of jurisdiction over the new matter. This principle was succinctly captured in Owners of the Motor Vessel "Lillian S" (cited above), where the Court held that once a court determines it lacks jurisdiction, it must "down its tools."
This Honourable Court is therefore urged by the respondent to strike out or disregard all averments and arguments in the application relating to the welfare or protection of children, financial, banking, mortgage, charity and donor records for want of jurisdiction.
On discovery of documents, the respondent submits that the threshold for production of documents has not been demonstrated.
The Plaintiff/Applicant has failed to demonstrate relevance, necessity, possession or proportionality. The Application is therefore a textbook fishing expedition which the courts have consistently declined to sanction.
The respondent relies on Trust Bank Limited v Aiay Shah & 3 others [20121 eKLR, where the Court held that discovery must be proportionate and connected to the real issue in dispute. According to the respondent, Sections 107-109 of the Evidence Act (Cap 80) places the burden of proof on the party who asserts a fact. Discovery cannot be invoked to shift this burden or to enable a party to construct a case it has not pleaded.
The respondent further cites the case of Kipkebe Limited v Peterson Ondieki Tai 120161 eKLRi where the Court of Appeal held that Discovery is not intended to enable a party to fish for evidence or to make a case against the other party where no case exists. The Courts have declined to compel production where the documents sought were not shown to be directly relevant to the pleaded issues as well as borne out of the cause of action.
In Uhuru Highway Development Ltd v Central Bank of Kenya 120021 2 EA 654, the Court warned that discovery should not degenerate into an oppressive fishing expedition wherein stating that Courts must guard against allowing wide and speculative disclosure requests. In Trust Bank Limited case, the High Court refused to compel disclosure of extensive financial documents, holding that "Discovery must be proportionate and confined to documents which are necessary for the fair disposal of the matter.
Courts have repeatedly held that discovery must be anchored to the pleadings, not to collateral allegations raised through applications wherein documents are sought to support un-pleaded allegations, courts decline production.
The respondent cites the case of Independent Electoral and Boundaries Commission v Stephen Mutinda Mule 3 Others f20141 eKLR, the Court of Appeal stated:
"The parties are bound by their pleadings, and evidence which does not support the pleaded case must be disregarded."
The respondent contends that courts have declined production where disclosure would violate confidentiality or privacy without sufficient justification whereas the Data LU Protection Act, 201 9 imposes obligations against indiscriminate disclosure of personal and financial data and that it is settled law that discovery and production of documents under the Civil Procedure Rules are inter partes processes applicable only between parties properly before the Court. Aid-4-orphans, a UK-registered charitable organization referenced by the Plaintiff/Applicant is not a party to these proceedings, neither has it been joined as a Defendant nor Interested Party thus cannot be subjected to the jurisdiction of this Honourable Court.
In Nairobi City County v Thabiti Enterprises Ltd 120191 eKLR, the Court declined as well to compel production of documents belonging to non-parties holding that such orders offend principles of fairness and due process. Discovery binds parties, not strangers wherein a foreign charity cannot be dragged into proceedings through the back door of a Notice to Produce.
ANALYSIS AND DETERMINATION
I have considered the Application, the response filed and submissions made on behalf of the parties as well as the decisions relied on. The Application before court is for discovery and production of documents as prayed in the notice of motion.
The Applicant’s case is that necessitated by the urgent need to safeguard the interests of the minors residing at the Child of Mercy Children's Home (COMOC), whose only home, the land in dispute was purchased and financed through donations expressly made by well-wishers and charitable donors for their benefit,
That the said land was identified and purchased by the 1st and 2nd Defendants, acting as trustees/directors of AIDS40RPHANS (a UK-based charitable organization), on behalf of the children's home, through a mortgage facility obtained in their names solely for administrative convenience and financing eligibility, as the home, being newly established in Kenya, could not itself qualify for such a facility.
Whether or not the court should order discovery and production of documents is a matter of discretion to be exercised in a judicious manner for purposes of fostering justice of the case.
The respondent submits that this court has no jurisdiction to entertain the application because the application is substantially anchored on allegations concerning the welfare of children, alleged violation of children's rights, safeguarding of minors and donor accountability in the context of child protection and therefore these issues fall squarely within the remit of the Children Act, 2022 and are reserved for the Children's Court and statutory child protection mechanisms not the Environment and Land Court. This argument is misconceived as the applicant seeks the production of documents to enable her prosecute her case properly. The applicant concedes that this court has the jurisdiction to entertain the suit and therefore cannot argue that the court has no jurisdiction to entertain the application. Moreover, there is no cause of action in the application as the cause of action is in the suit.
On whether the court can compel the production of documents, Section 22 of the Civil Procedure Act states:-
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 party-
a.Make such orders as may be necessary or reasonable in all matters relating to the delivering and answering of interrogatories, the admission of documents and facts and the discovery and inspection, production, impounding and return of documents or other material objects producible as evidence. The court has the power to summon any person to produce such documents or adduce evidence as the case may be.
Discovery is a formal pre-trial process through which a party to litigation may seek to discover evidence and facts that are crucial to his case, and as can be seen from section 22, the scope of discovery is quite broad. A party may seek to discover any fact that is not privileged but is relevant to the subject matter in the suit. The emphasis should be that the documents sought are relevant to the issue before the court.
The treatise of Halsbury Laws of England Vol 13 state at paragraph 38 that, discovery will not be ordered in respect of irrelevant allegations in the pleadings, which even if substantiated could not affect the result of the action nor in respect of an allegation not made in the pleadings or particulars, nor will discovery be allowed to enable a party to fish for witnesses or for a new case, that is to enable him start a new case.
Regarding the centrality of discovery, the court observed in Oracle Productions Ltd v Decapture Ltd & 3 Others [2014] eKLR that pre-trial discovery is so central to litigation that the entire Order 11 of Civil Procedure Rules (2010) has substantially devoted to it, including sanctions for non- compliance. Orders 4 and 7 now require parties to file and serve documentary evidence with their pleadings, while Order 14 empowers the Court to order production, impounding and return of documents. Discovery should be limited solely to matters in contention and relevance will only be gauged or tested by pleadings or particulars provided. It should be added that discovery is also intended to aid a party access vital documents to his case that are solely in the custody of the opposite party, thus levelling the litigation ground.
(Ramji Megji v Kisii University [2016] eKLR). The court emphasized in Concord Insurance Co. LTD v NIC Bank Ltd [2013] eKLR that only relevant documents should be disclosed and that relevance is to be tested in the pleadings, and that discovery should not be used as a fishing expedition.
In M. L. Sethi vs R. P. Kapur, 1972 AIR 2379, 1973 SCR (1) 697, the Supreme Court of India observed that: The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trail of enquiry which may have either of these two consequences.
As held in Lustman & Company (1990) Limited v Corporate Business Centre Limited & 4 others (Civil Suit 311 of 2018) [2022] KEHC 42 (KLR) (Commercial and Tax) (4 February 2022) by Justice Mwita as he then was if a document would throw light on the matter in dispute, the discovery of that document would be considered relevant even though the document may be inadmissible in evidence in the long run. It is the relevance of the document and not its admissibility that matters.
From the decisions referred to above, the main aim of discovery and production of documents is to uphold the case of the party seeking discovery and production and in order to destroy or weaken the opponent’s case. In that regard, for a party to succeed in getting order for discovery or production, he has a duty to establish that the discovery is aimed at fair disposal of the matter. The party must also show that the facts to be elicited will assist in establishing his case.
The Applicant has sought several documents it says will assist it prosecute its case. The core of the Applicant’s case is that the property in dispute was purchased by funds from donors and therefore he wants to prove the same. The respondent response is that the applicants are on a fishing expedition and that they do not have the documents sought and the documents sought to be produced are not relevant.
I am satisfied that the documents sought to be discovered are relevant to the dispute before court. In the end, the Applicant has succeeded in persuading the court that it is entitled to discover documents it seeks, and that this court is satisfied that those documents are relevant to the matters in question in this suit.
Consequently, the Application dated 28th May 2021 is allowed. The Respondents are hereby ordered to produce and serve the Applicant certified copies of the documents sought in the Amended Notice to produce dated 11th November 2025 namely; full and verifiable financial records relating to the mortgage facility obtained for the acquisition of land known as MOMBASA/MS/BLOCK 1/1596, being land purchased for the benefit and use of the Child of Mercy Children's Home and in particular and the complete mortgage account statements from the date the said facility was opened to date, showing all credits, debits, and running balances. Moreover, the defendants are hereby ordered to produce the corresponding bank statements of the account(s) into which donor funds under the Child of Mercy Donor Initiative were received, showing deposits, transfers, or any remittances applied toward servicing the said mortgage any documentary evidence of remittances or transfers made from the donor accounts or AIDS40RPHANS accounts to the mortgage account, whether directly or through intermediary accounts; and Auditor's reports, reconciliation statements.
The documents to be filed within 30 days from the date of this Ruling. Costs of the Application be in the cause. Orders accordingly. Matter cannot proceed as scheduled. Mention today at 2.00pm.