Gatatha Farmers Company Limited v Chemtingei & 3 others; Kaitet Tea Estates (1977) Limited & another (Interested Parties) (Environment & Land Case 9 of 2023) [2024] KEELC 3910 (KLR)
The bottom line
#A Kenyan court struck out a court application filed with a forged electronic signature, ordered the forger to pay costs, and referred him to the DCI for criminal investigation.
What this practically means
#Executive summary
#Key legal issues
#Whether the application filed on behalf of Mr. Okiro was properly before the Court
The application was not properly before the Court; it was drawn and filed without the alleged applicant's instructions, using his forged electronic signature, making it defective and a nullity.
The alleged applicant testified he never authorised the application and his signature was forged. Mr. Ogutu admitted drawing the application using a signature copied from a piece of paper and placed in a computer, and admitted he held no power of attorney. The supporting affidavit was neither made nor signed by the deponent before a Commissioner for Oaths as required by the Oaths and Statutory Declarations Act and Order 19 of the Civil Procedure Rules, 2010. The court found this was computer forgery, rendering the application a nullity under the non est factum principle.
Whether the application could be withdrawn
Rather than permitting withdrawal, the court struck out the application outright because it was fundamentally defective.
The alleged applicant sought withdrawal on the ground that the application was forged and filed behind his back. The court found the application and supporting affidavit were products of forgery and did not conform to statutory requirements. Given the fundamental defect, the appropriate order was striking out rather than withdrawal; the applicant was left free to represent himself in the main suit.
Who should bear the costs of the application
Mr. Ogutu, who moved the Court illegally, was to bear the costs, as costs follow the event.
The court noted that although Mr. Ogutu was not a party, it had given him an opportunity to be heard. Since the application was lost and it was he who had moved the Court illegally by filing a forged document, the normal rule that costs follow the event pointed to him bearing the costs of the application.
Whether the court could deal with the forgery as a criminal matter
The court held it lacked jurisdiction over the criminal offence of forgery but directed that the ruling be served on the DCI for further action.
The court characterised the conduct as computer forgery and related offences under the Computer Misuse and Cybercrimes Act, the Oaths and Statutory Declarations Act and the Penal Code, and found that Mr. Ogutu bore full criminal and other responsibility. However, forgery being a criminal offence, the ELC was not clothed with jurisdiction to entertain it. It therefore directed the Deputy Registrar to serve the ruling on the DCI Kitale and Nairobi headquarters for action.
Legal principles established
#- A party should not be condemned unheard and must be given an opportunity to be heard before adverse findings are made
- A document signed by forgery is a nullity and binds no one, not even an innocent party acting in good faith
- Fraudulently using another person's electronic signature is an offence under the Computer Misuse and Cybercrimes Act
- An affidavit not made or signed by the purported deponent before a Commissioner for Oaths is not a proper deposition
Court orders
#- 1.The Application dated 18/10/2023 is struck out
- 2.The entire Supporting Affidavit is struck out
- 3.The applicant is at liberty to continue representing himself
- 4.Costs of the application to be borne by Mr. Ogutu
- 5.The Directorate of Criminal Investigations (DCI), Kitale and Headquarters (Nairobi) to be served with the Ruling by the Deputy Registrar for further action
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit; court expressly declined to entertain forgery as it lacks jurisdiction over criminal offences.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatatha Farmers Company Limited v Chemtingei & 3 others; Kaitet Tea Estates (1977) Limited & another (Interested Parties) (Environment & Land Case 9 of 2023) [2024] KEELC 3910 (KLR)", Case Analysis (2024). ELC Case (Kitale), Application dated 18/10/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3910/eng@2024-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.