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ELCDismissedNotice of Motion dated 10/4/2023 (in proceedings over parcel No. LR Kiambaa/Kihara/T.394)· [2024] KEELC 1352 (KLR)

Ikere & another (Suing as administrators of the Estate of Miriam Edwin Mbugua) v Mbugua (Enviromental and Land Originating Summons 24 of 2021) [2024] KEELC 1352 (KLR)

Environment and Land Court
13 March 2024
2,170 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to order the DCI to examine handwriting evidence, ruling that parties must first file complaints directly with the DCI.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Thika (J G Kemei, Judge) disposed of a Notice of Motion dated 10/4/2023 filed by the Applicants in a dispute over parcel No. LR Kiambaa/Kihara/T.394. The Applicants, siblings of the Respondent, claim a customary trust over the suit land on the basis that their mother redeemed the property from Bank of Baroda after the Respondent defaulted on a loan, with the Respondent's alleged consent evidenced by a handwritten letter dated 5/1/1989. They sought orders directing the Directorate of Criminal Investigations (DCI) Kiambu to conduct a forensic handwriting examination of that letter to establish whether the Respondent authored it, and directing the Respondent to avail handwriting specimens. The Respondent denied authorship of the letter, denied that his mother repaid the loan, asserted he purchased the land in 1986 and personally settled the loan (relying on a discharge of charge issued on 22/11/2000), and contended the Applicants' pay-in slips were forgeries. The Court framed the issue as whether the Applicants were entitled to the orders sought. Applying Sections 22, 1A, 1B and 3A of the Civil Procedure Act, the Court held that the DCI is an independent institution under the Inspector-General established under Article 247 of the Constitution and Section 28 of the National Police Service Act, which does not require a court order to investigate crimes and examine documents under Sections 24(e) and 35(g). No evidence showed the DCI had failed to act on a complaint. Applying Speaker of the National Assembly v Karume and Joseph Njuguna Mwaura, the Court found the application premature and unsustainable, an improper invocation of jurisdiction that would usurp the DCI's constitutional mandate. Further, under Section 107 of the Evidence Act, the Applicants bear the burden of proving their own case and the court cannot assist one party to gather evidence against another as an impartial umpire. The application was dismissed with costs in favour of the Respondent.

Key legal issues

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01

Whether the court has power to order the DCI to conduct forensic examination of documents

Holding

The court lacks power to direct the DCI, an independent institution under the Inspector-General, to carry out its statutory investigative mandate; the proper course is for the Applicants to lodge a complaint with the DCI and, if it fails to act, seek judicial review remedies under Article 47 and the Fair Administrative Actions Act

Reasoning

The DCI is established under Section 28 of the National Police Service Act pursuant to Article 247 of the Constitution and enjoys constitutionally guaranteed independence under Article 245(4)(e). Under Section 24(e) and 35(g) of the NPSA it investigates crimes and undertakes forensic analysis on complaints lodged as provided by law. No evidence showed the DCI had failed to act on a request, so invoking the court's jurisdiction was premature and would usurp a constitutional body's mandate.

p. 4
02

Whether the Applicants' claim of customary trust could be aided by pre-trial forensic examination

Holding

The Applicants, who assert that the Respondent authored the 1989 letter consenting to the mother redeeming the charged land, bear the burden of proving that fact themselves; the court cannot assist a party to gather evidence against another

Reasoning

In an adversarial system each party must put its best evidence forward to persuade the court. Section 107 of the Evidence Act places the burden of proving asserted facts on the party asserting them. The Applicants' customary trust claim depends on the letter, but compelling the Respondent to provide handwriting exemplars via the DCI would amount to the court abandoning its role as impartial umpire and entering the arena of conflict on behalf of one party.

p. 5
03

Exhaustion of alternative remedies before invoking the court's jurisdiction

Holding

The application was premature and unsustainable because the Applicants had not first presented their complaint or request to the DCI as the law requires

Reasoning

Relying on Speaker of the National Assembly v Karume, where a clear procedure for redress is prescribed by the Constitution or statute, it must be strictly followed. The Applicants gave no evidence of having lodged a complaint with the DCI. Had the DCI failed to act, recourse would lie under Article 47 of the Constitution and the Fair Administrative Actions Act for mandamus and certiorari. Invoking the court's jurisdiction without exhausting that route was improper.

p. 4

Legal principles established

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  • Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • Jurisdiction must be ascertained before a court embarks on decision-making; courts have no jurisdiction over matters vested in other arms of government
  • He who asserts must prove; the burden of proof lies on the party asserting a fact

Court orders

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  1. 1.The Notice of Motion dated 10/4/2023 is dismissed with costs in favour of the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 22
  • Civil Procedure RulesOrder 51; Order 53
  • Constitution of KenyaArticles 35, 245(4)(e), 247, 47
  • National Police Service ActSections 24(e), 28, 35(g); Part V
  • Evidence ActSection 107(1) and (2)
  • Fair Administrative Actions Act

Cases cited (2)

  • Speaker of the National Assembly v Karume
    [1992] KECA 42 (KLR)
  • Joseph Njuguna Mwaura & 2 others v Republic
    [2013] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 22 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ikere & another (Suing as administrators of the Estate of Miriam Edwin Mbugua) v Mbugua (Enviromental and Land Originating Summons 24 of 2021) [2024] KEELC 1352 (KLR)", Case Analysis (2024). Notice of Motion dated 10/4/2023 (in proceedings over parcel No. LR Kiambaa/Kihara/T.394). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1352/eng@2024-03-13

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