KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
5. Discovery 5.1 Discovery and Civil Cases
5.5 Legal Privilege Kenyan law recognises several classes of privilege that protect certain communications from disclosure in legal proceedings. The most prominent is attor- ney–client privilege which prohibits an advocate from disclosing communications made by a client during their professional engagement, or the contents of any advice given, without the client’s consent. It does not, however, extend to communications made in furtherance of an illegal purpose, or to facts show- ing the commission of a crime or fraud. In addition, Kenyan law also recognises privilege against self-incrimination, public interest privilege and marital privilege where communications between spouses made during marriage are generally protect- ed. 5.6 Rules Disallowing Disclosure of a Document For a party to be compelled by a court to disclose certain documents in Kenya, the legal threshold is that of relevance and materiality to the issues in dispute must be met. Only documents necessary for the fair adjudication of the case are subject to disclosure. A party may resist disclosure on grounds such as legal privilege, public interest immunity, or where the docu- ments are not in their possession, custody, power, or control. The court retains discretion to limit or refuse disclo- sure where production would be oppressive, dispro- portionate, or otherwise unnecessary for the resolu- tion of the matter. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief Interlocutory injunctions are commonly used to main- tain the status quo until the dispute is resolved, while ex parte injunctions may be granted urgently to pre- vent immediate harm. On the other hand, permanent injunctions follow a full hearing while mandatory injunctions requiring a party
The general approach to discovery in Kenya is that parties are under an obligation to disclose documents that are in their possession or control which are rel- evant to the suit. It includes both the filing of a list of documents and the exchange of witness statements. If a party believes that the opposing party has with- held material documents, it may apply to the court for an order of discovery, inspection or production of such documents. The court retains discretion to limit the scope of discovery to prevent abuse, reduce unnecessary expense, and ensure proportionality to the matters in dispute. 5.2 Discovery and Third Parties The Civil Procedure Rules empower the court, either on its own motion or upon the application of a party, to issue summons to any person requiring their attend- ance to give evidence or to produce documents that are relevant to the matters in dispute. Non-parties may also be ordered to make discovery where it is shown that they have possession or control of material evidence. Failure by a third party to comply with such summons or orders may attract sanctions, including contempt proceedings. 5.3 Discovery in This Jurisdiction The general approach to discovery in Kenya is that the parties are required to file and exchange lists of all documents in their possession or control that are nec- essary and relevant to the issues in dispute, together with copies of such documents. If any party believes that the opposing party is in pos- session of documents material to the adjudication of the suit, such party may file an application to the court for an order compelling discovery, which the court has discretion to allow or disallow. Upon the court allowing such an application, the party is obligated to produce the documents. 5.4 Alternatives to Discovery Mechanisms There are no alternatives to discovery mechanisms.
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