Davjon Group Ltd v County Government of Nairobi & 2 Others; National Land Commission & Another (Interested Parties)
The bottom line
#A Kenyan court ruled that a party can demand original documents even late in a case, and each side must prove its own evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice to Produce dated 10th June 2025 issued by the 2nd Defendant should be set aside
Key legal issues
#Whether the Notice to Produce was liable to be struck out for being issued late in the proceedings
No. The Notice's late issuance, after the matter was confirmed ready for hearing, does not warrant setting it aside.
Sections 1A and 1B of the Civil Procedure Act require expeditious conduct, but the right to test documentary evidence cannot be deemed waived merely through prior participation in pre-trial proceedings. A notice to produce concerns proof of documents at trial rather than the finality of case management directions, and Section 69 of the Evidence Act does not restrict its issuance to the pre-trial stage.
Whether documents already appearing in the 3rd Defendant's or 1st Interested Party's bundles render the Notice unnecessary
No. The Plaintiff retains its own burden under Sections 107-109 of the Evidence Act to prove the documents it relies on.
The court held that reliance on another party's bundle does not discharge a party's evidentiary burden. At the interlocutory stage, the presence of documents elsewhere on the record does not entitle the Plaintiff to have the Notice set aside.
Whether the presumption of regularity and estoppel preclude the 2nd Defendant from challenging document authenticity
No. The presumption of regularity applies to the assessment of evidence and does not convert copies of public documents into primary evidence or bar testing them.
The court held that a document issued by a public authority does not make every copy primary evidence, and the presumption of regularity cannot be elevated to a conclusive presumption of authenticity. The argument, though relevant, does not negate the statutory requirements for proof of documentary evidence.
Whether the 2nd Defendant's Notice disclosed bad faith
No. The 1st Defendant's failure to oppose the List of Documents, or its treatment of the Plaintiff as a rates defaulter, does not bind the 2nd Defendant, a distinct party.
The court held that each defendant is entitled to adopt its own independent litigation position. The conduct of the 1st Respondent regarding the rates circular and non-opposition of documents did not establish bad faith on the part of the 2nd Defendant in issuing the Notice.
Whether the Plaintiff's explanation for non-production of the original title (held by a former advocate) suffices
No. Mere assertion that an original is held by an advocate is insufficient to establish unavailability or satisfy statutory requirements for secondary evidence.
A party seeking to rely on secondary evidence must establish the evidentiary foundation for it and cannot assume the copy will be admitted. Without further explanation, the assertion that the original is with a former advocate does not show the original is unavailable or that the Section 68 requirements are met.
Legal principles established
#- A notice to produce under Section 69 of the Evidence Act is not confined to the pre-trial stage and is not struck out merely because it was issued late or after the matter was confirmed ready for hearing.
- A party cannot discharge its evidentiary burden by pointing to another party's bundle; presence of a document elsewhere on the record does not dispense with the burden of the party relying on it.
- The presumption of regularity of official acts (omnia praesumuntur rite esse acta) does not bar a party from testing the authenticity of documents; it applies to the assessment of evidence.
Court orders
#- 1.The Notice of Motion dated 9th November 2025 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court Act, Sections 3(1), 13(2)(d) and 19(1); Civil Procedure Act Section 3A (as invoked by the parties)
Relief refused
#Setting aside and/or dismissal of the 2nd Defendant's Notice to Produce dated 10th June 2025
The Notice was not barred by being issued after pre-trial; the Plaintiff bears its own burden of proving documents it relies on; and bad faith was not established
Costs
Application dismissed with costs to the 2nd Defendant/Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, this Court does not find that the Notice, issued on 10th June 2025, is liable to be struck out merely because it was filed late in the proceedings or after the matter had been confirmed ready for hearing.
A notice to produce goes to the proof of documents at trial, not to the finality of case management directions, and Section 69 does not confine its issuance to the pre-trial stage.
a party bears its own burden under Sections 107 to 109 of the Evidence Act to prove the documents it relies upon, and cannot discharge that burden by pointing to another party's bundle
The upshot of the foregoing is that the application dated 9th November 2025 is without merit and is hereby dismissed with costs.
Issues in the judgment
#Heading styled 'RULING' though the document is an interlocutory ruling on a notice of motion, not a full judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Davjon Group Ltd v County Government of Nairobi & 2 Others; National Land Commission & Another (Interested Parties)", Case Analysis (2026). ELC No. E198 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6287/eng@2026-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.