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ELCDismissedNot stated in the judgment· [2022] KEELC 2937 (KLR)

Yusuf v Mohamed & another (Environment & Land Case 213 of 2018) [2022] KEELC 2937 (KLR)

Environment and Land Court
29 June 2022
NMN.A. MATHEKA
1,061 words in judgment
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The bottom line

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If you claim a signature in a Kenyan court case is forged, you must hire and pay for your own handwriting expert — the court won't do it for you.

What this practically means

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Executive summary

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The 1st defendant, by notice of motion dated January 21, 2021 brought under sections 1A, 1B and 3A of the Civil Procedure Act, order 3 rule 2, order 7 rule 17 and order 51 rule 1 of the Civil Procedure Rules, 2010, and articles 50(2)(k) and 159(2)(d) of the Constitution, sought an order that the signature on an agreement dated April 28, 2003 - by which the plaintiff claimed the defendant transferred his house on Plot No. 938/III/MN - be examined by a handwriting expert to verify its authenticity, plus costs. The defendant denied making the agreement and suspected forgery. The plaintiff opposed, arguing there was no factual foundation, that the agreement's veracity could be tested at trial, that section 72 of the Evidence Act had not been satisfied, and that the application was a fishing expedition likely to delay a suit filed in 2018. The court, N.A. Matheka J, held that under sections 107, 109 and 112 of the Evidence Act the burden of proving the signature lay on the defendant, who had to call his own expert at his own cost. Relying on the Court of Appeal decisions in Isca Adhiambo Okayo and Jennifer Nyambura Kamau, the court held it was not its role to look for evidence for a litigant. The application was found not merited and was dismissed with costs on June 29, 2022 at Mombasa.

Key legal issues

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01

Whether the court should order examination of the disputed signature by a handwriting expert

Holding

The application failed because the applicant bore the evidential burden of proving the signature was not his and had to call an expert at his own cost; the court would not procure evidence for him.

Reasoning

Sections 107, 109 and 112 of the Evidence Act place the burden of proving a particular fact on the person who wishes the court to believe in its existence, and on a party where the fact is especially within their knowledge. Following the Court of Appeal in Jennifer Nyambura Kamau, if an expert witness was necessary, the applicant had to call one. The court only considers pleadings and evidence brought before it and does not look for evidence for a litigant.

p. 3

Legal principles established

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  • Whoever desires a court to give judgment on a legal right or liability dependent on facts must prove those facts; the evidential burden of proving a disputed fact, including by expert evidence, lies on the party who wishes the court to believe in its existence.
  • The court adjudicates on the pleadings and evidence before it; it does not go out looking for evidence for any litigant.

Court orders

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  1. 1.The application dated January 21, 2021 is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure Rules, 2010order 3 rule 2, order 7 rule 17, order 51 rule 1
  • Constitution of Kenya, 2010articles 50(2)(k), 159(2)(d)
  • Evidence Actsections 72, 107(1), 108, 109, 112

Cases cited (2)

  • Isca Adhiambo Okayo vs Kenya Women's Finance Trust
    KSM CA Civil Appeal No 19 of 2015 (2016) eKLR
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    NYR CA Civil Appeal No 342 of 2010 [2013] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (chapter 21); order 3 rule 2, order 7 rule 17 and order 51 rule 1 of the Civil Procedure Rules, 2010; articles 50(2)(k) and 159(2)(d) of the Constitution, 2010

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, "Yusuf v Mohamed & another (Environment & Land Case 213 of 2018) [2022] KEELC 2937 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2937/eng@2022-06-29

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