In the Kenyan judicial system, parties have a right to information held by the opposing party that could aid their case through a pre-trial process known as discovery. As highlighted by a recent High Court ruling in KCB Bank Kenya Limited versus Gillys Security & Investigations Limited & 2 Others (2026), discovery is not merely a procedural formality. It is a fundamental safeguard designed to ensure fairness and uphold the integrity of the court. This ruling by Justice Njoki Mwangi serves as a critical case study on why the discovery process is indispensable for a fair trial.
The Dispute; Debt Collection vs. Alleged Fraud
The ruling arose from a lawsuit filed by KCB bank seeking to recover KES. 84,282,005.41 from Gillys Security and its directors. KCB bank maintained that the company’s account had been overdrawn in January 2016 and subsequently converted into an unsecured loan, which the directors allegedly defaulted on despite restructuring agreements, in 2017 and 2019, respectively.
The directors denied applying for the loan and alleged that the debt was actually a paper trail created to cover up fraudulent withdrawals. They claimed they were coerced into signing loan documents under threats of blacklisting to ‘sanitize’ fraud. To aid their defense, the directors filed a Notice to Produce, seeking to compel KCB to produce specific internal records referencing the alleged fraudulent transactions. KCB bank failed to produce these documents, claiming they were not in its possession, despite having produced a Forensic Report that expressly referred to the very documents it claimed were missing.
However, the court noted a significant contradiction in KCB bank’s position. KCB bank had produced a forensic report to support its claim, yet this very report referenced other documents that KCB bank had failed to produce. The directors argued that withholding these documents amounted to a deliberate suppression of material evidence intended to advance a false narrative.
The Court’s Ruling On the Discovery Process.
Under the Civil Procedure rules, the court has power to order discovery and production of documents.
Discovery ensures that both sides have access to the documents relevant to the dispute. This allows each party to assess how strong or weak their case is and helps ensure that the case is dealt with fairly, either before the trial or during it. By having access to the relevant documents in advance, each party can use them to support their own case or challenge the other side’s case. This process also helps prevent surprises at trial and reduces the overall cost of the proceedings.
Against this background, the court rejected KCB bank’s explanation for the missing records. The judge held that, “a bare statement that the documents were not in KCB bank’s possession did not meet the threshold required in discovery process”. The court noted that the absence of the documents could not be justified by a simple claim of unavailability, particularly where those documents were central to the dispute and had been relied upon in KCB bank’s own forensic material. The court therefore directed KCB bank to produce the documents specified in the Notice to Produce within 30 days.
Conclusion
This ruling emphasizes that the discovery process is key to maintaining fairness in Kenya’s courts. By requiring the production of important evidence and sworn explanations for any missing records, the system prevents the suppression of material evidence from being used as a tactic. As Justice Mwangi noted, transparency is “essential to preserve the integrity of the discovery process”.
The case is still ongoing, and this ruling is not final. We will keep you updated on any new developments.
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Read the original publication at CFL Advocates
