1. This Ruling determines the application dated 20th September 2024, which seeks an order directing Safaricom PLC to produce certified copies of the defendant’s statements as specified and granting leave to submit them as evidence. The application is opposed. I have considered the application, the response, the evidence, and both the written and oral submissions from both parties.
2. The parties herein were in a bank-customer relationship at all material times and the respondent’s bank account was linked to her mpesa till account. The applicant contends that an audit conducted by the Bank revealed some erroneously duplicated transactions between the respondent’s mpesa till account and bank account. These errors occurred during the applicant’s system migration, affecting transactions between 1st April 2019 and 31st October 2023. It is for this reason that the applicant seeks the orders, so as to be able to prove its claim against the respondent.
3. The respondent opposes the application, arguing that it amounts to a fishing expedition by the applicant and that granting the orders would infringe on her constitutional right to privacy under Article 31 of the Constitution.
4. I have carefully considered the application, response, evidence and the submissions by the parties, both written and oral. It is undisputed that a Notice to Produce was served on the respondent requesting for the information which is the subject matter of this application. The same has not been complied with. The respondent contends that obtaining these statements would present a financial and logistical difficulty to her.
5. Having failed to provide the information as required, the respondent now argues that disclosing the same would be an infringement of her right to privacy. However, my reading of Article 31 suggests that this right is not absolute. In particular, Article 31(c) provides in part;
“Every person has the right to privacy, which includes the right not to have …
(c)information relating to their family or private affairs unnecessarily required or revealed”;
6. Article 31(c) suggests that if it can be demonstrated that the requested information is necessary, disclosing a person’s private affairs may not necessarily constitute an infringement of their rights. Moreover, the right to privacy must be balanced against the right to access information under Article 35(1)(b) which is also a constitutional right.
7. In the case before me, the bank has attached the relevant bank statements for the period in question, which it seeks to compare with the mpesa till statements. This comparison aims to verify the alleged erroneous transactions, which the respondent has denied knowledge of. I find this to be a reasonable and necessary basis for requesting the statements in the interest of justice. The requested statements cover a specific period and are justified by the bank statements produced on pages 3227–4317 of the applicant’s documents. Any potential prejudice suffered by the respondent may be mitigated through an award of damages, if proven.
8. I further align myself with the decision of the Court of Appeal in TOS v Maseno University & 3 Others [2020] KECA 438 KLR in which the court held that;
“Accurate and truthful documents filed by parties in court for purposes of proving issues or questions in dispute in order to enable a court reach a fair determination cannot be said to amount to a violation of Article 31(c) of the Constitution”.
9. I have already observed that the respondent was given an opportunity to voluntarily produce the said documents and failed to do so. I further note that the amounts involved are colossal and that the applicant stands to lose Kshs. 143,867,603.66. There is no other means that the applicant would have of proving its case. While I acknowledge that the law generally requires the party making an allegation to provide proof, there are exceptions to this rule, one of which is applicable in the present case.
10. Section 112 of the Evidence Act provides that when a fact is within the knowledge of any party to civil proceedings, the burden of proof is upon that party. In the present circumstances the applicant does not have access to the respondent’s mpesa statements. The custodian of these statements is Safaricom PLC, upon which this order is to be served.
11. I disagree with the submission that Safaricom must be a party to these proceedings for such orders to issue, as the matters in question do not touch on them. This is the very essence of the power granted to this court under Section 22(a) of the Civil Procedure Rules.
Disposition
12. Accordingly, I find no merit in the objections raised by the respondent. As a result, the application dated 20th September 2024 succeeds.
Final Orders
13. An order is hereby issued directing Safaricom PLC to provide the applicant with certified copies of m-pesa statements for the respondent’s lipa na m-pesa till number 801387, covering the period from 1st April 2019, to 31st October 2023, within 30 days. The statements shall be used solely as evidence in this matter. All incidental costs shall be borne by the applicant. The costs of the application shall abide by the outcome of the suit.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 19TH DAY OF FEBRUARY 2025.
F. MUGAMBI
JUDGE
2. The parties herein were in a bank-customer relationship at all material times and the respondent’s bank account was linked to her mpesa till account. The applicant contends that an audit conducted by the Bank revealed some erroneously duplicated transactions between the respondent’s mpesa till account and bank account. These errors occurred during the applicant’s system migration, affecting transactions between 1st April 2019 and 31st October 2023. It is for this reason that the applicant seeks the orders, so as to be able to prove its claim against the respondent.
3. The respondent opposes the application, arguing that it amounts to a fishing expedition by the applicant and that granting the orders would infringe on her constitutional right to privacy under Article 31 of the Constitution.
4. I have carefully considered the application, response, evidence and the submissions by the parties, both written and oral. It is undisputed that a Notice to Produce was served on the respondent requesting for the information which is the subject matter of this application. The same has not been complied with. The respondent contends that obtaining these statements would present a financial and logistical difficulty to her.
5. Having failed to provide the information as required, the respondent now argues that disclosing the same would be an infringement of her right to privacy. However, my reading of Article 31 suggests that this right is not absolute. In particular, Article 31(c) provides in part;
“Every person has the right to privacy, which includes the right not to have …
(c)information relating to their family or private affairs unnecessarily required or revealed”;
6. Article 31(c) suggests that if it can be demonstrated that the requested information is necessary, disclosing a person’s private affairs may not necessarily constitute an infringement of their rights. Moreover, the right to privacy must be balanced against the right to access information under Article 35(1)(b) which is also a constitutional right.
7. In the case before me, the bank has attached the relevant bank statements for the period in question, which it seeks to compare with the mpesa till statements. This comparison aims to verify the alleged erroneous transactions, which the respondent has denied knowledge of. I find this to be a reasonable and necessary basis for requesting the statements in the interest of justice. The requested statements cover a specific period and are justified by the bank statements produced on pages 3227–4317 of the applicant’s documents. Any potential prejudice suffered by the respondent may be mitigated through an award of damages, if proven.
8. I further align myself with the decision of the Court of Appeal in TOS v Maseno University & 3 Others [2020] KECA 438 KLR in which the court held that;
“Accurate and truthful documents filed by parties in court for purposes of proving issues or questions in dispute in order to enable a court reach a fair determination cannot be said to amount to a violation of Article 31(c) of the Constitution”.
9. I have already observed that the respondent was given an opportunity to voluntarily produce the said documents and failed to do so. I further note that the amounts involved are colossal and that the applicant stands to lose Kshs. 143,867,603.66. There is no other means that the applicant would have of proving its case. While I acknowledge that the law generally requires the party making an allegation to provide proof, there are exceptions to this rule, one of which is applicable in the present case.
10. Section 112 of the Evidence Act provides that when a fact is within the knowledge of any party to civil proceedings, the burden of proof is upon that party. In the present circumstances the applicant does not have access to the respondent’s mpesa statements. The custodian of these statements is Safaricom PLC, upon which this order is to be served.
11. I disagree with the submission that Safaricom must be a party to these proceedings for such orders to issue, as the matters in question do not touch on them. This is the very essence of the power granted to this court under Section 22(a) of the Civil Procedure Rules.
Disposition
12. Accordingly, I find no merit in the objections raised by the respondent. As a result, the application dated 20th September 2024 succeeds.
Final Orders
13. An order is hereby issued directing Safaricom PLC to provide the applicant with certified copies of m-pesa statements for the respondent’s lipa na m-pesa till number 801387, covering the period from 1st April 2019, to 31st October 2023, within 30 days. The statements shall be used solely as evidence in this matter. All incidental costs shall be borne by the applicant. The costs of the application shall abide by the outcome of the suit.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 19TH DAY OF FEBRUARY 2025.
F. MUGAMBI
JUDGE