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ELCPartially Allowed(not stated in judgment excerpt)· [2020] KEELC 2702 (KLR)
Thomas K'bahati v Dorothy Seyanoi Moschioni [2020] KEELC 2702 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#Kenya's High Court can order a party who denies signing an agreement to give fingerprints for expert examination — but the party requesting must pay the expert's fees.
What this practically means
#Executive summary
#This ruling by L. Komingoi, J, delivered in Nairobi on 14th May 2020, determines a notice of motion dated 19th July 2017 brought by the plaintiff, Thomas K. Bahati, under Order 11 rule 3(2)(a), Order 7 rule 1(g) and Order 50 rule 1 of the Civil Procedure Rules 2010 and section 48 of the Evidence Act, Cap 80. The plaintiff sought the appointment of a fingerprint expert to examine the defendant's fingerprints, a direction that the defendant present herself to the expert, that a report be filed within 30 days, that the agreements dated 5th October 2013 and 24th April 2015 form the basis of the examination, and that the defendant pay the expert fees and costs. The plaintiff's case rested on the two agreements, which the defendant denied executing, alleging forgery. The plaintiff had by letter dated 10th June 2016 requested the defendant, through her advocates, to avail herself for fingerprint comparison, but she refused or neglected to do so. The defendant opposed the application through grounds of opposition dated 4th October 2017 and oral submissions. The court framed a single issue: whether the application was merited. Relying on section 48 of the Evidence Act, which renders expert opinion on the identity or genuineness of fingerprints admissible, the court found the plaintiff's reasons justifiable and held that the defendant had not demonstrated any prejudice she would suffer if the orders were granted. The application was allowed in substantive terms, but the court departed from the prayer on costs, directing the plaintiff to pay the expert's fees and bear the costs of the application.
Key legal issues
#01
Whether the court should appoint a fingerprint expert and compel the defendant to submit to fingerprint examination where she denies executing agreements alleged to be forgeries
Holding
The application was merited; the reasons adduced by the plaintiff were justifiable and the defendant demonstrated no prejudice
Reasoning
The plaintiff's case rested on the two agreements which the defendant denied executing, alleging forgery. Section 48 of the Evidence Act admits expert opinion on the genuineness of fingerprints. The plaintiff had earlier sought the defendant's voluntary submission, which was refused or neglected. The court found the request justifiable and the defendant failed to demonstrate any prejudice from undergoing the examination.
p. 2
Legal principles established
#- Opinions of persons specially skilled, including on the identity or genuineness of fingerprints, are admissible in evidence under section 48 of the Evidence Act
Court orders
#- 1.A fingerprint expert appointed to examine the defendant's fingerprints, with the plaintiff facilitating the exercise and providing details of the expert
- 2.The defendant directed to present herself before the fingerprint expert within 30 days of the ruling and undergo fingerprint examination
- 3.The fingerprint expert to conduct the examination, prepare and file the report in court within thirty (30) days of the examination
- 4.The agreements dated 5th October 2013 and 24th April 2013 on pages 10-13 and 36-40 of the plaintiff's copies of documents to form the basis of the fingerprint examination
- 5.The plaintiff to pay the fees for the expert and/or bear the costs of the application
- Jurisdiction invoked
- Order 11 rule 3(2)(a), Order 7 rule 1(g), Order 50 rule 1 of the Civil Procedure Rules 2010 and section 48 of the Evidence Act, Cap 80
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas K'bahati v Dorothy Seyanoi Moschioni [2020] KEELC 2702 (KLR)", Case Analysis (2020). (not stated in judgment excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2702/eng@2020-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.