Julia Wanjiju Gaburia (Suing as the legal administrator of the estate of the late Joseph Gaburia Mitaru v Sammy Ndungu Mungai & another [2017] KEELC 3180 (KLR)

The court noted that obtaining a document examiner's report is normal in criminal proceedings but rare in civil ones, particularly where one party seeks to compel another to submit a document to the examiner. No enabling statute was cited. Even if framed as discovery, ordinary provisions for production and inspection of documents exist and the plaintiff had not shown they were exhausted. The examiner, being a non-party, had to be heard before orders issued against him, and his input was necessary given the specialist procedures of forensic examination.

Relying on Joseph Mbalu Mutava v Attorney General and the audi alteram partem principle as stated in Halsbury's Laws of England and reaffirmed by the Court of Appeal in COTU v Benjamin K Nzioka, the court held that no person may be condemned or subjected to orders without prior notice and a fair opportunity to be heard. Since the document examiner was not a party, the court should hear his input before issuing the orders sought, which might prove impossible to enforce.