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ELCDismissedNotice of Motion dated 13.4.2026 in Plaint dated 6.9.2023 (ELC Eldoret)· [2026] KEELC 4322 (KLR)

Chemonye v Chemonye & 3 others (Environment and Land Case E009 of 2023) [2026] KEELC 4322 (KLR)

Environment and Land Court
13 July 2026
COC.N. ONDIEKI
2,509 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Eldoret (C.N. Ondieki J) determined a Notice of Motion dated 13.4.2026 filed by the 2nd to 4th Defendants, administrators of the estate of Paulo Kimuge Cherono (deceased), in a suit in which the Plaintifi seeks declarations of ownership, trust, substitution on the register and adverse possession over Kiplombe/Emkwen Block 1 (Kimisto)/26. The Applicants sought an order directing the County Criminal Investigations Oficer in-charge of Uasin-Gishu County to subject contracts dated 14.4.2005 to forensic examination of attestation signatures, alleging forgery. The Plaintifi and the 1st Defendant opposed, terming the application an abuse of process, a fishing expedition and dilatory. The court distilled one issue: whether the Applicants had made a case for the forensic examination order. Guided by the inherent powers in sections 3A and 63(e) and the discovery provisions in section 22 of the Civil Procedure Act, and authorities including Kenya Power & Lighting Co v Benzene Holdings and Equity Bank v West Link Mbo, the court held that such powers must be exercised with circumspection and never to support a fishing expedition. The Applicants had not lodged any complaint with the NPS, so under the doctrine of exhaustion of remedies the civil court could not be the first port of call for suspected criminal conduct; the NPS needs no court order to act. The application was also filed three years after suit without explanation, offending Article 159(2)(b) and the overriding objective. The application was dismissed with costs in the cause, with liberty to report the matter to the CCIO.

Key legal issues

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01

Whether the court should direct the CCIO to subject the disputed contracts to forensic examination

Holding

The application was dismissed; the Applicants failed to meet the exceptional-circumstances threshold

Reasoning

The court held that the Applicants never lodged a complaint with the NPS, so under the doctrine of exhaustion of remedies the civil court is not the first port of call for suspected criminal conduct. Court orders should be wielded sparingly and the NPS needs no court order to perform its mandate. Further, the application came three years after suit without explanation, offending Article 159(2)(b) and the overriding objective. Criminal-process results, if admissible, may later be deployed in the civil suit.

p. 4
02

Scope of the court's inherent and discovery powers under sections 3A, 63(e) and 22 of the CPA

Holding

The powers exist to further the ends of justice but must be exercised with circumspection and not to advance one party's case or a fishing expedition

Reasoning

Relying on Kenya Power & Lighting Co Ltd v Benzene Holdings and Equity Bank Ltd v West Link Mbo Ltd, the court affirmed inherent power to make orders necessary for the ends of justice, broadened by sections 1A and 1B CPA and Article 159 of the Constitution. Discovery under section 22 CPA avoids trial by ambush, but the power must balance competing rights and cannot substitute for statutory police processes.

p. 3

Legal principles established

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  • The court's power to order discovery under sections 3A, 63(e) and 22 of the Civil Procedure Act cannot be exercised to support a fishing expedition, having regard to the burden of proof
  • Discovery powers may exceptionally be directed at a non-party where a report from investigations exists but the NPS declines or inordinately delays to provide it
  • Civil process cannot be used to further a criminal process; suspected forgery should first be reported to the police under the doctrine of exhaustion of remedies
  • Applications lodged after inordinate unexplained delay are dilatory and incompatible with the oxygen principle

Court orders

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  1. 1.The Notice of Motion dated 13.4.2026 is dismissed
  2. 2.Costs of the Application shall be in the cause
  3. 3.Liberty to the Applicants to lodge a complaint with the County Criminal Investigations Oficer in-charge of Uasin-Gishu County; the matter to proceed without derailing the hearing
Jurisdiction invoked
Sections 3A, 63(e) and 22 of the Civil Procedure Act (inherent power and discovery)

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, "Chemonye v Chemonye & 3 others (Environment and Land Case E009 of 2023) [2026] KEELC 4322 (KLR)", Case Analysis (2026). Notice of Motion dated 13.4.2026 in Plaint dated 6.9.2023 (ELC Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4322/eng@2026-07-13

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