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ELCDismissedNot stated in the judgment (application within a land claim by adverse possession)· [2019] KEELC 1439 (KLR)

Fredrick Kigwa Odulah v Titus Wanyonyi Wasianju [2019] KEELC 1439 (KLR)

Environment and Land Court
9 October 2019
1,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan courts cannot force a party to give specimen signatures for evidence-gathering; each side must gather and prove its own evidence.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Bungoma (Olao, J) determines a Notice of Motion dated 28th August 2019 filed by the Applicant within a claim for adverse possession over two acres of land parcel Bungoma/Kiminini/1. The Applicant's father, Elijah Odulah Kasire (deceased), allegedly purchased the land from the Respondent under a sale agreement dated 12th May 1996 for Kshs.100,000. The Respondent disowned the agreement as a forgery, and the Applicant sought an order compelling the Respondent to avail himself to the CID Bungoma office to give a specimen signature to verify and authenticate the signature on the sale agreement and on a summons to enter appearance. Counsel for the Applicant also sought the expungement of the Respondent's replying affidavit filed on the morning of the hearing, contrary to Order 51 Rule 14(2) of the Civil Procedure Rules. The Court declined to expunge the affidavit, relying on its discretion under Order 51 Rule 14(4) and authority that documents filed late should be considered unless there are reasons other than mere lateness. On the merits, the Court held that compelling a party to provide specimen signatures for investigative purposes would make the Court an accomplice in evidence-gathering, a function incompatible with its role as an impartial arbiter in an adversarial system. Following the Court of Appeal's decision in Peter Kirika Githaiga & Another v Betty Rashid, the application was dismissed with no orders as to costs.

Key legal issues

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01

Whether a court can compel a party to provide specimen signatures to investigative authorities to authenticate a disputed document

Holding

The application was dismissed; obtaining evidence is not the role of a court in adversarial proceedings

Reasoning

The Court held that in an adversarial system, the judiciary only hears and determines disputes on the rights and liabilities of the parties before it. Compelling the Respondent to appear at the CID for specimen signatures would amount to the Court aiding one litigant to collect evidence that the Court itself would later use in deciding the dispute. The Court of Appeal in Peter Kirika Githaiga & Another v Betty Rashid was applied, holding that a court should not descend into the arena of conflict or assist in fishing for, gathering or retrieving evidence. A litigant may instead call a document examiner as a witness.

p. 2
02

Whether the Respondent's replying affidavit filed out of time should be expunged

Holding

The Court declined to expunge the late-filed replying affidavit

Reasoning

Under Order 51 Rule 14(2) of the Civil Procedure Rules, a Respondent must file responses not less than three clear days before the hearing. The Respondent breached this by filing on the morning of the hearing. However, the Court exercised its discretion, guided by Jane Wanjiru Karondo v Clare Njeri Githunguri and Central Bank of Kenya v Uhuru Highway Development Ltd, holding that documents filed late should still be considered unless there are reasons other than mere lateness. The Applicant had pointed to no substantive objection beyond the delay.

p. 2

Legal principles established

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  • A court in an adversarial system must not assist a party in gathering or retrieving evidence; compelling the investigative agency or a party to produce specimens for evidence-gathering would make the court descend into the arena
  • Where a Respondent fails to file a response within the time stipulated by Order 51 Rule 14, the Court retains discretion whether to expunge the late filing or consider it, particularly where no substantive prejudice or plausible objection is shown

Court orders

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  1. 1.The Applicant's Notice of Motion dated 28th August 2019 is dismissed
  2. 2.There shall be no orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 14(2)
  • Civil Procedure RulesOrder 51 Rule 14(4)

Cases cited (3)

  • JANE WANJIRU KARONDO V CLARE NJERI GITHUNGURI
    2017 eKLR
  • CENTRAL BANK OF KENYA V. UHURU HIGHWAY DEVELOPMENT LTD & OTHERS
    C.A Civil Appeal No. 75 of 1998
  • PETER KIRIKA GITHAIGA & ANOTHER V. BETTY RASHID
    2016 eKLR
Jurisdiction invoked
Civil Procedure Rules, Order 51 (application for orders within a pending civil suit); judicial authority over disputes before the Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fredrick Kigwa Odulah v Titus Wanyonyi Wasianju [2019] KEELC 1439 (KLR)", Case Analysis (2019). Not stated in the judgment (application within a land claim by adverse possession). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1439/eng@2019-10-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.