Obtaining Evidence in Kenya for Foreign Court Proceedings: Letters Rogatory and Mutual Legal Assistance

When a foreign court needs evidence located in Kenya, a bank record, internal company documents, or sworn testimony from a witness who will not travel, that request has to pass through Kenyan legal machinery before anyone will hand it over or be compelled to testify. This is the domain of letters rogatory, also called letters of request: the mechanism by which one court asks another, in a different country, to take evidence on its behalf. For foreign litigators, in-house counsel, and courts running civil or commercial disputes, knowing how this works in Kenya, and how it differs from the criminal-matter mutual legal assistance regime, saves months of wasted effort. This article covers the Kenyan route for letters of request, Kenya’s position on the Hague Evidence Convention, how compliance is enforced, and where the mutual legal assistance treaty framework does and does not apply.

Kenya Is Not a Party to the Hague Evidence Convention

The 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters gives contracting states a standardised, treaty-based channel for sending and executing letters of request through designated Central Authorities, and it is the route most foreign litigators reach for first. Kenya is not one of the contracting parties; the Hague Conference on Private International Law’s own status table for the Evidence Convention does not list Kenya among its contracting states. A foreign court or party therefore cannot rely on the Convention’s Central Authority mechanism, standard forms, or Article 23 discovery carve-outs. The request instead runs through ordinary Kenyan civil procedure, on a comity basis, and foreign counsel should plan for that from the outset.

The Kenyan Mechanism: Order 28 of the Civil Procedure Rules

Absent the Convention, the operative procedure sits in Order 28 of the Civil Procedure Rules, 2010, “Commission and References.” Rule 17 provides that the provisions on execution and return of commissions for examining witnesses apply to commissions issued by courts in the Commonwealth outside Kenya, or by courts of a foreign country in alliance with Kenya. A foreign letter of request is not self-executing; it must be brought before a Kenyan court with jurisdiction, typically by an application filed by local counsel for the party seeking the evidence, exhibiting the letter of request itself. Once accepted, the request proceeds under the same machinery Order 28 uses domestically: the court appoints a commissioner under rules 1 to 3, given powers under rule 14 to examine witnesses or parties, call for documents, and enter premises to inspect relevant property. Rule 15 deems the commissioner a judge for purposes of the provisions on summoning, attendance, and examination of witnesses, and penalties on them; this pulls the witness-summons regime under section 23 of the Civil Procedure Act and Order 16 into the letter of request process, rather than leaving the commissioner to rely on goodwill.

Compelling a Reluctant Witness or Document Holder

Once a summons issues and is ignored, Order 16 sets out a graduated enforcement path. Under rule 10, if satisfied the person has, without lawful excuse, failed to attend or produce a document, or intentionally avoided service, the court may issue a proclamation requiring attendance, affixed to the outer door of their residence, and may also issue a warrant for arrest, with or without bail, and order attachment of property up to the amount of costs and any fine that might follow. Under rule 12, if the person still fails to satisfy the court, it may impose a fine calibrated to their circumstances and order attached property sold to cover costs and the fine, released if paid before sale. This is the same coercive apparatus Kenyan courts use against any recalcitrant domestic witness, applied equally to a foreign letter of request; it is not a request a document holder can simply decline.

Mutual Legal Assistance Is a Different, Criminal-Matter Regime

A common and costly error is assuming the Mutual Legal Assistance Act, No. 36 of 2011, is a shortcut for civil evidence-gathering. It is not. The Act defines a “criminal matter” as investigations, prosecutions, or judicial proceedings relating to a criminal offence, including forfeiture, confiscation, and freezing of property, and its assistance framework applies to requests relating to criminal matters. Section 5(2) designates the office of the Attorney-General as Kenya’s Central Authority for receiving and transmitting such requests, and the Attorney-General’s published guidelines for foreign authorities describe a process built around that office, including an expected acknowledgment within five working days. None of this applies to a purely civil or commercial dispute, even one touching on fraud or asset tracing; the correct route there is the Order 28 letter of request. MLA is relevant only where the foreign proceeding is itself criminal, or civil evidence needs to be drawn from a criminal investigation already under way in Kenya.

Practical Alternatives and Timing

Because the formal route runs through court application, commissioner appointment, and, if needed, coercive enforcement, it is rarely fast; plan in months rather than weeks, allowing time to instruct Kenyan counsel and, if compulsion is required, attend further hearings under Order 16. Where the evidence holder is willing, a formal letter of request may not be needed at all: voluntary cooperation, a statement or affidavit sworn before a Kenyan commissioner for oaths or notary public, or a deposition by consent, is often quicker and cheaper, and the foreign court’s own rules will usually dictate what form of voluntary evidence it accepts. Banks and companies may also cooperate voluntarily, subject to Kenya’s data protection and confidentiality obligations. Formal compulsion should be the fallback, not the first move.