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Case Brief · caselaw.co.ke
ELCDismissedELC No. E198 of 2023

Davjon Group Ltd v County Government of Nairobi & 2 Others; National Land Commission & Another (Interested Parties)

Environment and Land Court
2 October 2026
4,269 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (Murigi J) on the Plaintiff's Notice of Motion dated 9th November 2025, seeking to set aside a Notice to Produce dated 10th June 2025 issued by the 2nd Defendant, Nairobi City Water & Sewerage Company, under Section 69 of the Evidence Act and Order 11 Rule 3(2)(c) of the Civil Procedure Rules. The Plaintiff contended the Notice was late, filed a day before an earlier hearing date despite the matter having been confirmed ready for hearing; unnecessary because the documents sought appeared in the bundles of the 3rd Defendant and the 1st Interested Party; oppressive and issued in bad faith, given the 1st Defendant's inconsistent conduct including listing the Plaintiff as a rates defaulter; and unenforceable because the original title was held by a former advocate. The 2nd Defendant maintained it was entitled under Section 69 of the Evidence Act to demand inspection of originals to verify the chain of title, invoking the best evidence rule and the Plaintiff's burden of proof under Sections 107-109. The court framed one issue: whether the Notice should be set aside. It held that Section 69 does not confine issuance of a notice to produce to the pre-trial stage; that late issuance does not justify striking it out; that presence of documents in another party's bundle does not discharge the Plaintiff's evidentiary burden; that the presumption of regularity applies to assessment of evidence, not as a bar to testing documents; and that no bad faith was disclosed, each defendant being entitled to its own litigation position. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice to Produce dated 10th June 2025 issued by the 2nd Defendant should be set aside

Key legal issues

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01

Whether the Notice to Produce was liable to be struck out for being issued late in the proceedings

Holding

No. The Notice's late issuance, after the matter was confirmed ready for hearing, does not warrant setting it aside.

Reasoning

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.

p. 17
02

Whether documents already appearing in the 3rd Defendant's or 1st Interested Party's bundles render the Notice unnecessary

Holding

No. The Plaintiff retains its own burden under Sections 107-109 of the Evidence Act to prove the documents it relies on.

Reasoning

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.

p. 17
03

Whether the presumption of regularity and estoppel preclude the 2nd Defendant from challenging document authenticity

Holding

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.

Reasoning

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.

p. 17
04

Whether the 2nd Defendant's Notice disclosed bad faith

Holding

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.

Reasoning

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.

p. 18
05

Whether the Plaintiff's explanation for non-production of the original title (held by a former advocate) suffices

Holding

No. Mere assertion that an original is held by an advocate is insufficient to establish unavailability or satisfy statutory requirements for secondary evidence.

Reasoning

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.

p. 18

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 9th November 2025 is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 19

Costs

Application dismissed with costs to the 2nd Defendant/Respondent.

Quotable passages

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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.
p. 17Timing of notice to produce
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.
p. 17Scope of Section 69 Evidence Act
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
p. 17Evidentiary burden
The upshot of the foregoing is that the application dated 9th November 2025 is without merit and is hereby dismissed with costs.
p. 19Final orders

Issues in the judgment

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minor

Heading styled 'RULING' though the document is an interlocutory ruling on a notice of motion, not a full judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.