WILLIAM KIPCHUMBA KOSGEY AND WILSON KIPKEMBOI KOSGEY VS PETER KIPCHIRCHIR KOSGEY AND ALBINA GICHUKU KOSGEY AND 2 Others

1. The present ruling originates from an application by Mr Francis Murgor learned counsel for the plaintiffs to call the 3^rd defendant to produce documents specified in the notice to produce documents dated 25^th April 2024 under, inter alia, section 22 (a) and (b) of the Civil Procedure Act Chapter 21 Laws of Kenya.
2. Mr Murgor has premised the application on the grounds that;  (a)  The notice to produce documents was duly served on all the defendants.  (b)  Summons not served on the 3^rd defendant to produce documents to be relied upon by the plaintiffs.  (c) The 3^rd defendant will be a common witness herein.  (d)  Hearing of the plaintiffs’ case proceed today  (e)  The plaintiffs’ case be closed tomorrow after the testimony of the 3^rd defendant.
3. Mr Simiyu learned counsel for the 1^st and 2^nd defendants has objected to the application and urged that the plaintiffs’ case be closed on the grounds thus;  (a)  Hearing of the suit had been adjourned previously at the instance of the plaintiffs’ counsel who was condemned to pay costs.  (b)  The plaintiffs’ counsel did not take action to procure attendance of the 3^rd defendant to testify.
4. Mr Kwame learned counsel for the 3^rd and 4^th defendants associated himself with the objection raised by learned counsel for the 1^st and 2^nd defendants. He stated in part-  (a)  That he intends to call the 3^rd defendant for further hearing tomorrow and  (b)  The plaintiffs’ counsel will be at liberty to cross examine the 3^rd defendant on the documents contained in the notice duly served herein.
5. By his rejoinder, learned counsel for the plaintiffs reiterated that the 3^rd defendant who is a common witness is duty bound to produce public documents as per the notice issued and served under Order 11 Rule 3 (2) (b) of the Civil Procedure Rules 2010, section 22 (a) (supra), access to information and the Constitutional provisions. Counsel stated that the case had been adjourned previously as the 1^st and 2^nd defendants counsel sought to introduce amended defence and counterclaim. That today’s date was taken by a counsel who held his brief
6. So, is the application meritorious?
7. It is not in dispute that the notice to produce documents was served on the 3^rd defendant to give evidence thereof.
8. Further, it is common ground that the suit is listed for hearing today and tomorrow in the spirit of Article 159 (2) (b) of the Constitution of Kenya 2010 which reads;

Justice shall not be delayed

9. Today, the court has substantially heard the plaintiffs’ case.

10. Notably, public documents are listed in the notice to produce documents served on the 3^rd defendant, a public officer.

11. In the spirit of Articles 50 (1), 25 (c). 48 and 159 (2) (b) of the Constitution of Kenya 2010, the applicants have the fundamental right to call the 3rd defendant pursuant to the notice to produce documents duly served herein; see James Kanyiita Nderitu and another-vs-Marios Philotas Ghikas and another (2016) eKLR.

12. In the premises, the application is merited and the same is hereby allowed accordingly.

13. It is so ordered.

DATED and DELIVERED at KAPSABET this 5^th day of FEBRUARY 2025

G  M  A ONGONDO

JUDGE

PRESENT;

Mr F. Murgor learned counsel for the plaintiffs

Mr Simiyu learned counsel for the 1^st and 2^nd defendants

Mr Kwame learned counsel for the 3^rd and 4^th defendants

Walter, court assistant