Introduction.
1. In her ruling of 9th August 2024, the Learned Trial Magistrate, allowed the 1st Respondent’s application dated 15th April 2024 whereby he sought that the Appellant herein and the 2nd Respondent be compelled to produce and make recovery on oath and avail all the contract signed between then and TECNO CAMON 20 Campaign and bank transfer details and proof of payments made by the 2nd Respondent to the Appellant upon signing TECNO CAMON 20 campaign and that the Appellant do produce royalty reports from the digital platforms where he uploaded the songs Showman and Top Form.
2. Aggrieved by the said ruling, the Appellant herein filed a memorandum of appeal dated 19th August 2024 where he invites this Court to set aside the ruling and the order of production of Endorsement Agreement and corresponding bank transfer be vacated.
3. Appellant’s written submissions are dated 15th May 2025 while those of the 1st Respondent are dated 22nd July 2025. The 2nd Respondent never participated in this appeal. The Judgment herein is, therefore, based on the said written submission by the two parties.
Analysis of the appeal.
4. Having looked at the grounds of appeal and the parties’ written submissions, the main issue for determination is: -
Whether the Trial Court erred by allowing the 1st Respondent’s application dated 15th April 2024.
5. The Application at the Trial Court was based on among other grounds that the Appellant herein was served with the Notice to Produce before the formal application at the Trial Court but they failed to produce despite the court advising them to comply with the notice to produce. The Appellant objected to the Application on the basis that for a court to order a party to produce the court must satisfy itself that the documents are not only relevant but also necessary, the Appellant faulted the 1st Respondent for failing to demonstrate the relevant of the documents.
6. It was the Appellant’s case that the documents sought are totally unnecessary as the information sought is available through other means and the same was contained in the 1st Plaintiff’s list of documents. The Appellant further produced a Non-Disclosure Agreement and relied on the same to support its case.
Appellant’s submissions.
7. The Appellant in his submissions invokes Article 31 of the Constitution and Section 25(c) of the Data Protection Act and argues that individuals have a legitimate expectation that their personal and sensitive business information will not be disclosed unnecessarily and that the principle of data minimization required that only data strictly necessary for a specified, lawful purpose be collected or disclosed. He submits that the release of the endorsement agreement and the bank transfers would violate this fundamental right, as they pertained to confidential and commercially sensitive information relating to confidential business dealings and once disclosed, his privacy could not be restored.
8. The Appellant relies in the case of Nduati & 26 Others vs Ernst & Young LLP (2022) KEELRC 3926 (KLR), where he submits that the threshold for determining what constituted confidential information was established. He further argues that the endorsement agreement and bank transfers met the threshold established in the above case as they pertained to private, commercially sensitive contractual arrangements only accessible to the contracting parties under a binding non-disclosure agreement and that requiring their disclosure would not only expose the Appellant to commercial harm but also breach the contractual duty of confidentiality owed under the said agreement.
9. The Appellant also submits that the disclosure was likely to undermine his ability to protect his brand identity, ultimately leading to a risk in his market positioning and any leak of this information could diminish their brand's value. He argues that where a contract contained confidentiality or non-disclosure clauses, third parties who were not privy to that contract could not demand access to its contents unless there was a justifiable and lawful reason and the reason propounded by the 1st Respondent was not justifiable. He claimed that releasing the contents would not only violate the confidentiality clauses therein but also expose the Appellant to a potential breach of contract and subsequent legal liability.
10. He submitted that discovery should be limited to what was necessary and relevant to the case as was discussed in ABN Amro Bank vs. Kenya Pipeline Company Ltd (2014) eKLR. He submits that endorsement agreement and the financial records were not relevant to the core issues of the case and releasing them would broaden the scope of the dispute unnecessarily.
11. With regards to royalty reports for the songs Showman and Top Form, the Appellant submits that the same were filed in his list of documents. The Appellant faults the trial court and argued that the trial court failed to strike a balance between the competing rights of the parties as it failed to weigh his rights to privacy, data protection and contractual confidentiality against the Respondent’s interest in obtaining evidence. He argues that the trial court should have considered less intrusive alternatives such as limiting disclosure to redacted versions of the documents and he cited Maina vs NCBA Bank Kenya PLC [2023].
1st Respondent’s submissions.
12. The 1st Respondent in their submissions cited the case of Charania vs Raj Metals Limited & another (Civil Case E161 of 2019) and Muriithi vs Public Service Commission & 2 others; Rotich & 3 others and submitted that no prejudice was to be occasioned on any party if the documents sought were produced and they were not meant to cause any financial or commercial harm to any party.
13. The 1st Respondent submits that the documents were not subject to the Secrets Act and they were meant to enable the court to make a sound decision. He further pointed out that the documents were meant to guide the court in arriving at a just decision in terms of the payment made under the contract and on what ground the Appellant entered into an agreement with the 2nd Respondent to his exclusion since his copyrighted work was used in the advertisement by the 2nd Respondent without his knowledge.
14. The 1st Respondent further submits that the Appellant had shown high affinity to swindle him, avoid responsibility and delay the suit. He asserted that there was a possibility of the Appellant and the 2nd Respondent producing fictious documents and that the only way the Appellant and the 2nd Respondent would table the real agreement was if the same was supported by the corresponding bank transfer details and proof of payment made. He argued that if the said documents were provided, the 2nd Respondent had no reasons to collude to defeat the end of justice.
Findings.
15. The trial court in its Ruling found that the documents are directly connected with suit since they relate to songs said to have been composed by the 1st Respondent and allegedly one of them was published by the parties in this dispute without his consent and without benefiting from.
16. The Trial Court found that the documents will assist it to determine the real issues in controversy completely and effectually, the Court concluded that the documents sought to be discovered to were necessary and relevant to the fair determination of the suit.
17. The nature and extent of discovery has been discussed in Halsbury's Laws of England; 4th Edition as follows:
“The term "discovery" in this title is used to describe the process by which the parties to civil cause or matter are enabled to obtain, within certain defined limits, full information of the existence and the content of all relevant documents relating to the matters in question between them…. In determining whether a document should be disclosed by a party two tests should be applied: (1) whether it is relevant: (2) whether it is or was in the possession, custody or power of the party or his agent: and in any case when the order directing disclosure has limited discovery or relates to particular documents only the terms of that order must be applied…The power of the court to make an order for production for inspection is discretionary, and the court will not make an order for the production of any documents for inspection unless it is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. Whilst the court may make an order for production for inspection at any time, it will not normally allow a plaintiff inspection before he has served his statement of claim or a defendant before he has served his defence.”
18. From the Ruling of the Trial Court, the Learned magistrate having looked at the dispute and the application before her found that the documents will assist the Court in determining the real issues in controversy, in my view the Learned Magistrate assessed the totality of the case before making her findings. Having analyzed the appeal, it is my finding that the Learned Magistrate exercised her discretion properly when she allowed the application.
19. The Trial Court supported her decision by the fact that the documents would assist the court in determining the issue in dispute before her. It is trite law that the appellate court will only interfere with the exercise of discretion where a Court misdirected itself in a matter and as a result arrive at a wrong decision or where he misapprehended the law or failed to take into account a relevant matter.
20. I therefore find the findings of the Trial Court sound and will not interfere with the same. Court of Appeal made similar findings in 2019 KECA 313 (KLR) on discovery as follows:
“As stated earlier, discovery is a tool requiring an adverse party to disclose information that is essential for the preparation of the requesting party's case and/or to ascertain the existence of information that may be introduced as evidence at trial. The respondent was well within its rights to request the return of documents given to the appellant, presumably with the intent to introduce the documents as evidence at the trial which was yet to begin.
The test for discovery is proof of possession and materiality of the information sought by the parties. This being the settled legal requirement and having been proved by the respondent in the present case, we find no inclination to interfere with the trial court’s decision.’’
21. I therefore dismiss the Appeal with costs to the 1st Respondent.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 18th day of September 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Katee, Learned Counsel for the Appellant.
Omondi, Learned Counsel for the 1st Respondent.
No appearance for the 2nd Respondent
Michael - Court Assistant.
1. In her ruling of 9th August 2024, the Learned Trial Magistrate, allowed the 1st Respondent’s application dated 15th April 2024 whereby he sought that the Appellant herein and the 2nd Respondent be compelled to produce and make recovery on oath and avail all the contract signed between then and TECNO CAMON 20 Campaign and bank transfer details and proof of payments made by the 2nd Respondent to the Appellant upon signing TECNO CAMON 20 campaign and that the Appellant do produce royalty reports from the digital platforms where he uploaded the songs Showman and Top Form.
2. Aggrieved by the said ruling, the Appellant herein filed a memorandum of appeal dated 19th August 2024 where he invites this Court to set aside the ruling and the order of production of Endorsement Agreement and corresponding bank transfer be vacated.
3. Appellant’s written submissions are dated 15th May 2025 while those of the 1st Respondent are dated 22nd July 2025. The 2nd Respondent never participated in this appeal. The Judgment herein is, therefore, based on the said written submission by the two parties.
Analysis of the appeal.
4. Having looked at the grounds of appeal and the parties’ written submissions, the main issue for determination is: -
Whether the Trial Court erred by allowing the 1st Respondent’s application dated 15th April 2024.
5. The Application at the Trial Court was based on among other grounds that the Appellant herein was served with the Notice to Produce before the formal application at the Trial Court but they failed to produce despite the court advising them to comply with the notice to produce. The Appellant objected to the Application on the basis that for a court to order a party to produce the court must satisfy itself that the documents are not only relevant but also necessary, the Appellant faulted the 1st Respondent for failing to demonstrate the relevant of the documents.
6. It was the Appellant’s case that the documents sought are totally unnecessary as the information sought is available through other means and the same was contained in the 1st Plaintiff’s list of documents. The Appellant further produced a Non-Disclosure Agreement and relied on the same to support its case.
Appellant’s submissions.
7. The Appellant in his submissions invokes Article 31 of the Constitution and Section 25(c) of the Data Protection Act and argues that individuals have a legitimate expectation that their personal and sensitive business information will not be disclosed unnecessarily and that the principle of data minimization required that only data strictly necessary for a specified, lawful purpose be collected or disclosed. He submits that the release of the endorsement agreement and the bank transfers would violate this fundamental right, as they pertained to confidential and commercially sensitive information relating to confidential business dealings and once disclosed, his privacy could not be restored.
8. The Appellant relies in the case of Nduati & 26 Others vs Ernst & Young LLP (2022) KEELRC 3926 (KLR), where he submits that the threshold for determining what constituted confidential information was established. He further argues that the endorsement agreement and bank transfers met the threshold established in the above case as they pertained to private, commercially sensitive contractual arrangements only accessible to the contracting parties under a binding non-disclosure agreement and that requiring their disclosure would not only expose the Appellant to commercial harm but also breach the contractual duty of confidentiality owed under the said agreement.
9. The Appellant also submits that the disclosure was likely to undermine his ability to protect his brand identity, ultimately leading to a risk in his market positioning and any leak of this information could diminish their brand's value. He argues that where a contract contained confidentiality or non-disclosure clauses, third parties who were not privy to that contract could not demand access to its contents unless there was a justifiable and lawful reason and the reason propounded by the 1st Respondent was not justifiable. He claimed that releasing the contents would not only violate the confidentiality clauses therein but also expose the Appellant to a potential breach of contract and subsequent legal liability.
10. He submitted that discovery should be limited to what was necessary and relevant to the case as was discussed in ABN Amro Bank vs. Kenya Pipeline Company Ltd (2014) eKLR. He submits that endorsement agreement and the financial records were not relevant to the core issues of the case and releasing them would broaden the scope of the dispute unnecessarily.
11. With regards to royalty reports for the songs Showman and Top Form, the Appellant submits that the same were filed in his list of documents. The Appellant faults the trial court and argued that the trial court failed to strike a balance between the competing rights of the parties as it failed to weigh his rights to privacy, data protection and contractual confidentiality against the Respondent’s interest in obtaining evidence. He argues that the trial court should have considered less intrusive alternatives such as limiting disclosure to redacted versions of the documents and he cited Maina vs NCBA Bank Kenya PLC [2023].
1st Respondent’s submissions.
12. The 1st Respondent in their submissions cited the case of Charania vs Raj Metals Limited & another (Civil Case E161 of 2019) and Muriithi vs Public Service Commission & 2 others; Rotich & 3 others and submitted that no prejudice was to be occasioned on any party if the documents sought were produced and they were not meant to cause any financial or commercial harm to any party.
13. The 1st Respondent submits that the documents were not subject to the Secrets Act and they were meant to enable the court to make a sound decision. He further pointed out that the documents were meant to guide the court in arriving at a just decision in terms of the payment made under the contract and on what ground the Appellant entered into an agreement with the 2nd Respondent to his exclusion since his copyrighted work was used in the advertisement by the 2nd Respondent without his knowledge.
14. The 1st Respondent further submits that the Appellant had shown high affinity to swindle him, avoid responsibility and delay the suit. He asserted that there was a possibility of the Appellant and the 2nd Respondent producing fictious documents and that the only way the Appellant and the 2nd Respondent would table the real agreement was if the same was supported by the corresponding bank transfer details and proof of payment made. He argued that if the said documents were provided, the 2nd Respondent had no reasons to collude to defeat the end of justice.
Findings.
15. The trial court in its Ruling found that the documents are directly connected with suit since they relate to songs said to have been composed by the 1st Respondent and allegedly one of them was published by the parties in this dispute without his consent and without benefiting from.
16. The Trial Court found that the documents will assist it to determine the real issues in controversy completely and effectually, the Court concluded that the documents sought to be discovered to were necessary and relevant to the fair determination of the suit.
17. The nature and extent of discovery has been discussed in Halsbury's Laws of England; 4th Edition as follows:
“The term "discovery" in this title is used to describe the process by which the parties to civil cause or matter are enabled to obtain, within certain defined limits, full information of the existence and the content of all relevant documents relating to the matters in question between them…. In determining whether a document should be disclosed by a party two tests should be applied: (1) whether it is relevant: (2) whether it is or was in the possession, custody or power of the party or his agent: and in any case when the order directing disclosure has limited discovery or relates to particular documents only the terms of that order must be applied…The power of the court to make an order for production for inspection is discretionary, and the court will not make an order for the production of any documents for inspection unless it is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. Whilst the court may make an order for production for inspection at any time, it will not normally allow a plaintiff inspection before he has served his statement of claim or a defendant before he has served his defence.”
18. From the Ruling of the Trial Court, the Learned magistrate having looked at the dispute and the application before her found that the documents will assist the Court in determining the real issues in controversy, in my view the Learned Magistrate assessed the totality of the case before making her findings. Having analyzed the appeal, it is my finding that the Learned Magistrate exercised her discretion properly when she allowed the application.
19. The Trial Court supported her decision by the fact that the documents would assist the court in determining the issue in dispute before her. It is trite law that the appellate court will only interfere with the exercise of discretion where a Court misdirected itself in a matter and as a result arrive at a wrong decision or where he misapprehended the law or failed to take into account a relevant matter.
20. I therefore find the findings of the Trial Court sound and will not interfere with the same. Court of Appeal made similar findings in 2019 KECA 313 (KLR) on discovery as follows:
“As stated earlier, discovery is a tool requiring an adverse party to disclose information that is essential for the preparation of the requesting party's case and/or to ascertain the existence of information that may be introduced as evidence at trial. The respondent was well within its rights to request the return of documents given to the appellant, presumably with the intent to introduce the documents as evidence at the trial which was yet to begin.
The test for discovery is proof of possession and materiality of the information sought by the parties. This being the settled legal requirement and having been proved by the respondent in the present case, we find no inclination to interfere with the trial court’s decision.’’
21. I therefore dismiss the Appeal with costs to the 1st Respondent.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 18th day of September 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Katee, Learned Counsel for the Appellant.
Omondi, Learned Counsel for the 1st Respondent.
No appearance for the 2nd Respondent
Michael - Court Assistant.