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Pontrilas Investments Ltd v Central Bank of Kenya and Another (Application 14 of 2019)

East African Court of Justice · [2020] EACJ 26 · 2020 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for witness summons and leave to amend pleadings arising from Reference No. 8 of 2017
Decision
Application partly allowed; amendment granted by consent; witness summons issued for Head of Bank Supervisory Department; summons for Governor refused; most document production requests refused

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court granted leave to amend the Amended Reference by consent. The application for witness summons in respect of the Governor was dismissed. The Court held that applications for production of documents under Rule 66 require specificity of description, relevance to the proceedings, and proof that documents are in the possession or control of the party from whom they are sought. Only three categories of documents satisfied these requirements. Witness summons were issued for the Head of the Bank Supervisory Department instead of the Governor, as that officer would have direct knowledge of the supervisory matters in issue.

Outcome

Application partly allowed; amendment granted by consent; witness summons issued for Head of Bank Supervisory Department; summons for Governor refused; most document production requests refused

Facts

Imperial Bank Limited was placed under receivership by the Central Bank of Kenya on 13 October 2015 following allegations of fraud and misrepresentation of financial status. The bank was placed under supervision of the Kenya Deposit Insurance Corporation for twelve months. On 28 June 2017, the Governor of the Central Bank indicated the bank would be sold or liquidated. On 23 August 2017, Pontrilas Investments Limited, having been assigned the rights of Imperial Bank depositors, filed Reference No. 8 of 2017 challenging the Central Bank's regulatory conduct. During a scheduling conference on 18 November 2019, the applicant indicated its intention to summon the Governor as a witness. The applicant then filed this application seeking witness summons for the Governor to testify and produce documents, and also sought leave to amend a typographical error in the Amended Reference regarding the date of a meeting with depositors.

Issues

  1. Whether the applicant should be granted leave to amend paragraph 65B of the Amended Reference to correct a typographical error.
  2. Whether witness summons should issue requiring Dr. Patrick Njoroge, Governor of the Central Bank of Kenya, to appear as a witness and produce documents.
  3. Whether the documents sought by the applicant are described with sufficient specificity to satisfy Rule 66(2) of the Court's Rules.
  4. Whether the documents sought are relevant to the determination of Reference No. 8 of 2017.
  5. Whether the documents sought are in the possession or control of the First Respondent.

Orders

  • By consent of the Parties, the application for amendment is allowed. The Amended Reference stands duly amended by correcting the date of the meeting mentioned in paragraph 65B of the Amended Reference to read 28th June 2017.
  • The application for the production of the documentation delineated in items B13(c), (e) and (i) of Schedule A to the Application is hereby allowed.
  • The application for the production of the documents outlined in clauses B1, B2, B3, B4, B6, B7, B8, B9, B11, B12 and B13(a), (b), (d), (f), (g) and (h) of the same Schedule is hereby disallowed.
  • The application for witness summons to issue in respect of Dr. Patrick Njoroge is hereby disallowed.
  • Witness summons are hereby issued in respect of the Head of the First Respondent's Bank Supervisory Department to appear in person for purposes of adducing evidence and production of the documents stipulated in clause 48(b) hereof.
  • Each Party to bear its own costs.

Rules and key headnotes

Witness Summons — Requirements for Production of Documents — Specificity of Description
An application for the production of documents under Rule 66(1) of the East African Court of Justice Rules of Procedure must describe the documents with such degree of specificity as would enable the issuer of the summons to deduce from it, for inclusion within the summons, the levels of accuracy prescribed in Rule 66(2). Generic references to 'all documents' relating to a particular function are insufficient and depict non-knowledge of the specific documents required, lending credence to the possibility of a fishing expedition.
Documentary Evidence — Production of Documents — Three-Fold Test
For documents to be produced pursuant to a witness summons, three requirements must be satisfied: (1) the documents must be described with reasonable specificity; (2) they must be relevant to the determination of the matter; and (3) they must be in the possession or control of the party from whom they are sought. The specificity of document identification is the primary consideration, as the questions of relevance and possession can scarcely be interrogated in the absence of a reasonably explicit description.
Discovery — Distinction from Witness Summons for Document Production
Rule 66 of the East African Court of Justice Rules of Procedure addresses documents whose evidential worth has been pre-determined but are in possession or control of a third party, and is distinct from the typical discovery proceedings in municipal courts which involve interrogatories, inspections and production of documents in convoluted processes. While the practice of discovery may be included within the ambit of Rule 66, discoveries cannot be construed to be the sole import of that legal provision.
Witnesses — Competence and Compellability — Direct versus Indirect Evidence
Courts favour direct evidence over circumstantial evidence and prefer contemporaneous evidence from persons with direct knowledge. Where a department within an institution has first-hand knowledge of matters in contention and custody of relevant documents, officers of that department are more competent witnesses to provide direct evidence than the chief executive officer of the institution, even where statute designates the chief executive as the institution's representative.
Judicial Precedent — Binding and Persuasive Authority — International Courts
Decisions of municipal courts within the East African Community region are neither binding upon the East African Court of Justice as decisions of a superior court, nor do they carry the weight of decisions of the First Instance Division requiring good reason before departure. The East African Court of Justice, being an international court with a regional mandate, should draw inspiration from the Court's own Rules and related decided cases within the international arena rather than follow municipal courts' approaches where not persuaded to do so.

Legislation cited (10)

  • East African Court of Justice Rules of Procedure, 2013 r.56
  • East African Court of Justice Rules of Procedure, 2019 r.66
  • East African Court of Justice Rules of Procedure, 2019 r.136
  • East African Court of Justice Rules of Procedure, 2019 r.127
  • Central Bank of Kenya Act s.13(3)
  • Central Bank of Kenya Act s.13(4)
  • Central Bank of Kenya Act s.13(5)
  • Central Bank of Kenya Act s.4
  • Central Bank of Kenya Act s.4A
  • Constitution of Kenya Art.231(2)

Cases cited (7)

  • Motor Mart & Exchange Ltd v Standard General Insurance Company Ltd (1960) 1 EA 616
  • Wendy v IL Ngwesi Company Ltd (2005) 1 EA 382
  • Oluoch v Charaqu (2003) 2 EA 649
  • Fred Mukasa Mbidde v Attorney General of Burundi and Another (Application No. 6 of 2018)
  • White v Spafford & Co (1901) 2 KB 241
  • Guyana v Suriname (ICGJ 370) (PCA 2007)
  • Democratic Republic of Congo v Uganda (2005) ICJ 201

Full judgment

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Pontrilas Investments Ltd v Central Bank of Kenya and Another (Application 14 of 2019) [2020] EACJ 26 (15 June 2020)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.