Mutevesi

SULUMENA LUBALE MUTEVESI ................................................ 1ST DEFENDANT CHRISTOPHER KUBWA ............................................................... 2ND DEFENDANT DAVID SHIJENJE MUKOSHI ........................................................ 3RD DEFENDANT TIMOTHY TELLA ........................................................................... 4TH DEFENDANT RODAH WARONYA SIKOLIA ...................................................... 5TH DEFENDANT THE DISTRICT LAND REGISTRAR .......................................... 6TH DEFENDANT THE DISTRICT LAND SURVEYOR ............................................ 7TH DEFENDANT THE ATTORNEY GENERAL ........................................................ 8TH DEFENDANT RULING 1. This ruling is in respect of Notice of Motion dated 17th June 2024, led by Chiveu Shamala Imboko, the First Defendant in ELCC No. 140 of 2016 who is also the Plainti in ELCC No. 304 OF 2017. The following orders are sought in the application: 1. That the present application be certied urgent and be heard on priority basis. 2. That the interested party herein do submit the original copies of the agreements dated 12.12.99 and 13.04.2000, and acknowledgments dated 22.12.99, 18.04.2000, 29.04.2000, 28.02.2000 and 31.05.2000 to the DCI Kabras Police Station together with known Signatures specimen from the witnesses named in the agreement for period between 1999 and 2000 for forensic investigation. 3. That costs hereof be provided for. 2. The application is primarily targeted at Isiye Clement Muyabila, the 6th Interested Party in ELCC No. 140 of 2016. It is supported by an adavit sworn by Chiveu Shamala Imboko, the applicant. He deposed that he made a report at Malava Police Station concerning agreements which Isiye Clement Muyabila annexed to his application in this matter and that upon the documents being submitted for forensic examination at the Directorate of Criminal Investigations (DCI), a report dated 23rd April 2024 was issued. That the police summoned Isiye Clement Muyabila, but he was uncooperative. 3. Isiye Clement Muyabila opposed the application through a Replying Adavit in which he deposed that originals of the documents remained in possession of the vendor and that the Applicant should not be allowed to turn the Court into an investigative agency. That as a neutral arbiter, the Court cannot aid one party to investigate another and further that the Court lacks jurisdiction. 4. The other parties did not le any response to the application. The application was canvassed through written submissions. The Applicant and Isiye Clement Muyabila led written submissions. The rest of the parties did not le any submissions. 5. Nevertheless, in oral address to the Court, counsel for the Plaintis in ELC 140 of 2016 and for 1st, 3rd, 4th and 5th Interested Parties in ELC 140 of 2016 urged the Court to reject the application. On the other hand, counsel for 3rd Defendant in ELC 304 of 2014 and 2nd Interested Party in ELC 140 of 2016 argued that the application is meritorious. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13875/eng@2024-12-17 2

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6. I have carefully considered the application, adavits and submissions. The record shows that Isiye Clement Muyabila was allowed to join the matter on 12th March 2024, upon his own application. The matter was partly heard as of that date, with PW1’s evidence in chief having been taken. At the request of parties, directions were given that hearing proceeds from where it had reached. Thus, the suit is partly heard. 7. The application seeks orders to compel Isiye Clement Muyabila to avail originals of specied documents as well as specimen signatures for purposes of forensic investigation by DCI. The applicant has not provided any proof that the originals are in the custody of Isiye Clement Muyabila. The later has deposed that he does not have them. Further, the specimen signatures sought are not exclusively those of Isiye Clement Muyabila. 8. Forensic investigation is a criminal law process. This Court’s jurisdiction is purely civil. Further, there is risk of the Court descending to the arena of conict if it were to order one party to submit to a criminal law process in respect of the matters that are before it. Parties should pursue the criminal law process separately. Additionally, they should use their own industry within the civil procedure to obtain and present evidence in support of their cases. 9. I nd no merit in Notice of Motion dated 17th June 2024. I dismiss it with costs to Isiye Clement Muyabila, the 6th Interested Party. DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 17TH DAY OF DECEMBER 2024. D. O. OHUNGO JUDGE Delivered in open court in the presence of: No appearance for the Plainti in ELC 304 of 2014 Mr Osango for the Plaintis in ELC 140 of 2016 and for 1st, 3rd, 4th and 5th Interested Parties in ELC 140 of 2016. Mr Nyikuli for the 1st Defendant in ELC 140 of 2016 No appearance for 2nd Defendant in ELC 140 of 2016 and 6th to 8th Defendants in ELC 304 of 2014 Mr Getanda for 3rd Defendant in ELC 304 of 2014 and 2nd Interested Party in ELC 140 of 2016 6th Interested Party in ELC 140 of 2016 present in person Court Assistant: M Nguyayi https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13875/eng@2024-12-17 3

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