REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT VIHIGA
LAND CASE NO E006 OF 2025
MELZADECK OKWEMBA MTIRE aka
MELKZADECK OKWEMBA MUTILE ………….…….……….. PLAINTIFF
VERSUS
TABITHA SARAH ATIENO OGOLLA ......................... 1ST DEFENDANT
SARAH AKINYI OGOLLA …...................................... 2ND DEFENDANT
NATIONAL BANK OF KENYA ................................... 3RD DEFENDANT
R U L I N G
1. The application before court for determination is the Notice of Motion dated 17th February, 2026 brought on behalf of the Plaintiff pursuant to the provisions of sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act Cap 21 Laws of Kenya 2010, Article 35 of the Constitution of Kenya 2010 and sections 4 and 8 of the Access to Information Act, 2016. The application seeks orders that;
1) The 3rd Defendant, National Bank of Kenya, be ordered to forthwith supply the Plaintiff, at his own expense, with the following documents which are in its possession:
a. Comprehensive and itemized account statements regarding the Plaintiff’s Kenya Shillings account No.7700527725 (opened on the 13th day of January, 2016 and Euro account No.7714668105 (opened on the 24th day of February, 2018), showing all transactions relating to the said accounts.
b. Copies of all specimen signature records held by the 3rd Defendant in respect of the said account.
c. Copies all account mandate forms and instructions authorizing any person (including the 2nd Defendant Tabitha Sarah Atieno Ogolla) to access or operate the said account, indicating dates of execution, scope of authority, and date of termination of the account mandate.
d. Copies of all deposit slips, receipts, and/or transfer confirmation showing payments made by the Plaintiff and/or from the said account toward the loan account secured by the title to parcel numbers KISUMU/KARANDO/5898, KISUMU/KORANDO/5899, and EAST BUNYORE/EBUSUNDI/2627.
2) The Director General of Immigration Services, Ministry of Interior and National Administration do equally furnish the Plaintiff with certified copies of his travel history spanning January, 2017 to December 2023, covering the Plaintiff’s travel between the Federal Republic of Germany and the Republic of Kenya.
3) Costs of the application be provided for.
2. The grounds upon which the application is brought, as stated on the face of the application, are that both the 1st and the 2nd Defendants have vehemently denied the Plaintiff’s claim relating to the accounts held by the 3rd Defendant, hence the need to access the information from the 3rd Defendant. That the Plaintiff is a customer of the 3rd Defendant and has a right to access the requested information, subject to any administrative cost required.
That the statement of defence filed by the 1st and 2nd Defendants has raised issues which requires that the Plaintiff do access his travel history for the period sought so as to be able to rebut. That the orders sought are necessary and for the just determination of the suit.
3. The application was supported by the averments in the Affidavit of Milkazedeck Okwemba Mutile and annexures thereto.
4. The application was opposed by the 1st and 2nd Defendants vide the grounds of opposition dated 10th March, 2026. The case of the 1st and 2nd Defendant is that the application lacks merit and is an abuse of the honourable court’s judicial time.
That the Applicant in his application has yet to demonstrate if he owns and or is a signatory of the accounts alleged therein and how and why the court should exercise judicial discretion in his favour to order for the bank to break its fiduciary duty. That the orders sought against the Director General of Immigration Services is an afterthought and seek to delay the matter further since the said officer is not a party to this suit, and that the application seeks to invoke judicial powers to pierce and violate privileged information of an account holder who is yet to be established by the honourable court.
5. The application was heard orally on 11th March, 2026. It was submitted on behalf of the Applicant that, as the 1st and 2nd Defendants have denied the allegation in the plaint, the Plaintiff is justified to rebut the denial through documentation held by the 3rd Defendant, who is his banker. That the Plaintiff requires his travel history from the Director General of Immigration because the Defendants allege that the Plaintiff was present in Kenya when certain activities took place. That the only way to prove that the Plaintiff was not in Kenya at the time is for the Director of Immigration to furnish the history.
6. On behalf of the Respondent, it was submitted that the Applicant had not demonstrated that he was the account holder of the accounts quoted in the application. That the Plaintiff has not demonstrated what difficulties he had encountered in getting the documents from his banker.
That the accounts are in reference to the 1st and 2nd Defendants’ accounts; hence, the Plaintiff is seeking to obtain privileged information which has no bearing on the case.
That regarding the information sought from the Director of Immigration, the passport number is not indicated, and that it is not indicated what difficulty existed in obtaining the documents.
That the Plaintiff has not explained why he cannot use his duly stamped passport to demonstrate his travel history. That the application is an abuse of the court process and ought to be dismissed.
7. I have considered the application and the opposition thereto.
The duty to produce evidence before the court belongs to the party who wishes the court to consider such evidence. In the present case, the Plaintiff is seeking the court’s assistance to procure certain documents to be part of his evidence in the case.
The Plaintiff has not explained the hardship, if any, he had encountered in procuring the evidence without the assistance of the court. The 3rd Defendant, from whom the Plaintiff seeks bank statements and pay-in-slips, is the Plaintiff’s banker, enjoying a confidential banker-customer relationship. It has not been alleged that the relationship has broken down. There is no evidence that the Plaintiff has tried to get the documents directly from the bank.
There is no evidence that the bank accounts in respect of which the said documents are sought belong to the Plaintiff. The same applies to the prayer for documents to be supplied by the Director of Immigration; it has not been demonstrated that any hardship has been encountered in a bid to procure the same, or that the applicant’s passport is not adequate to show the required applicant’s travel history
No basis has been laid for the grant of the relief sought. The result is that;
i. The application is dismissed.
ii. Costs to the 1st and 2nd Defendants/Respondents.
Orders accordingly.
Ruling dated and signed at Vihiga, read virtually this 7th day of May, 2026, through Microsoft Teams online application.
E. ASATI,
JUDGE.
In the presence of
Atika: Court Assistant
Kundu for the Plaintiff/Applicant.
Emukule for the 1st and 2nd Defendants/Respondents.
No appearance for the 3rd Defendant/Respondent.
| ELC LC E006/2025 RULING 2 |