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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the court has power to order the DCI to conduct forensic examination of documents
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
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.
Whether the Applicants' claim of customary trust could be aided by pre-trial forensic examination
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
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.
Exhaustion of alternative remedies before invoking the court's jurisdiction
The application was premature and unsustainable because the Applicants had not first presented their complaint or request to the DCI as the law requires
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 10/4/2023 is dismissed with costs in favour of the Respondent
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 22 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.