Mtuwa & another

b. That the court do direct the National Registration Bureau to release official original/certified fingerprint and signature records for Alii Jumaa / Ali Juma Mutua ID No. H.8346 to serve as control samples. c. That the forensic examiner do prepare and file a forensic fingerprint, handwriting and/or signature analysis report in court within such time as the court shall direct. d. That the court do grant leave for David Gitau Burugu to defend the suit and testify on behalf of the 1st Defendant (Wilson Burugu Gitau), who is 86 years old and physically frail, pursuant to a registered Power of Attorney. e. That cost of the application be in the cause 2. The grounds upon which the application is premised are that, the 1st Defendant lawfully bought the suit land Kwale/Shimba North/Kundutsi "A"/428 in June 1975 for KSh 2,500 from Alii Jumaa /Ali Juma Mutua who on 10th June 1975 executed a written acknowledgement of payment upon receipt of the full purchase price. The Plaintiff however denies that any sale took place, alleging that the deceased was already dead at the time and that the execution documents are fraudulent. He thus avers that expert forensic examination is required to independently verify the authenticity of the signatures and thumbprints to resolve the dispute. 3. The application is supported by the Affidavit of the 1st Defendant/Applicant sworn on 14th May 2026 in which she annexes the transfer forms and certificate of title in his name as evidence of purchase and registration in his name. He too annexed an acknowledgement signed by the seller acknowledging receipt of the purchase price as well as the application to the Land Control Board for the consent, documents that he now wants subjected to examination in the light allegation by the plaintiff that the same were not genuine and had had not been signed by their deceased father. 4. The respondents opposed the applicant’s application vide a Replying Affidavit sworn by the 1st plaintiff on 2nd June 2026 in which he depones that his late father did not attend school, could not read or write, and left no written documents for handwriting comparison. He challenges the validity of an alleged national identity card and a transaction acknowledgement receipt for Ksh 800/=, stating that his father had already died at Kinango Hospital by June 1975, though attempts to retrieve official death records from 1974/1975 at Kinango District Hospital and Kwale District Hospital were unsuccessful because the old records were unavailable. 2 ELCLC NO 073/2025

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5. Directions were issued that the Application be disposed of by way of written submissions. For the applicant it was submitted that the issue of whether the documents were signed by the deceased cannot be satisfactorily resolved through mere assertions by either party. Rather, it calls for objective scientific evidence capable of assisting the Court in arriving at the truth. Counsel argued that once the Plaintiffs placed the authenticity of the thumbprint, signatures and handwriting in issue by alleging fraud and denying execution of the documents, the most reliable and impartial method of resolving the dispute became forensic examination by an independent expert. He noted the Directorate of Criminal Investigations - Forensic Services is an independent Government agency with the requisite expertise to undertake the proposed examination and comparison using records held by the National Registration Bureau. 6. Counsel further submitted that no prejudice whatsoever will be occasioned to the Plaintiffs if the orders sought were granted. He surmised that, if the Plaintiffs are correct that the documents are fraudulent and were never executed by the deceased, the forensic examination will confirm that position and viewed refusal to permit forensic examination as intended to deny the Court access to the best available evidence on a matter that lies at the heart of the dispute. 7. Counsel therefore argued that the application is neither speculative nor a fishing expedition but is rather a necessary evidentiary process intended to assist the Court objectively determine whether the thumbprint, signatures and handwriting appearing on the impugned documents belong to Alii Jumaa alias Ali Juma Mutua. He thus urged the court to allow the motion as prayed and that David Gitau Burugu, the duly appointed Attorney of the 1st Defendant/Applicant, be permitted to continue with and/or defend these proceedings and testify on behalf of the 1st Defendant/Applicant pursuant to the registered Power of Attorney. 8. By the time of penning this ruling, the Plaintiffs/Respondents had not put in any submissions. 9. I have now considered the applicant’s application as well as the opposition thereto by the respondents. I have also considered the submissions by the counsel for the Applicant herein. Two issues for determination in this application are whether the thumbprints, handwriting, and signatures on the Acknowledgment of Payment dated June 10, 1975, the transfer Form dated 3 ELCLC NO 073/2025

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June 5, 1975 and Land Control Board Consent Application dated June 4, 1975 should be subjected to forensic analysis by the Directorate of Criminal Investigations (DCI) - Forensic Services and whether leave ought to be granted for David Gitau Burugu to defend the suit and testify on behalf of the 1st Defendant Wilson Burugu Gitau pursuant to a registered Power of Attorney. The gist of the plaintiff’s claim is that land parcel Kwale/ Shimba North/Kundutsi A/428 was fraudulently registered in the 1st Defendant’s name and that the deceased Ali Juma Mutua did not sell the suit land as purported by the 1st Defendant. They posit that the deceased was already dead, having died in 1974 and as such could not have transacted as purported a position that is controverted by the applicant who pleads that the deceased was well and alive when he sold the suit land to him and signed/fingerprinted the impugned documents. 10. Authenticity of a fingerprint, handwriting or signature cannot be established by oral evidence irrespective of the number of witnesses. When there is tension between two parties, one alleging that a document was signed/ fingerprinted or written by a particular person while the other disputes, as is the case herein, the best way to resolve the conflict is to subject the signature/fingerprint or handwriting to the experts in the field for an independent expert opinion. It should be in the interest of either party to find out the truth about the authorship of the document/s and there cannot be any prejudice to be suffered to the Respondent by granted the prayer sought. 11.Indeed, while granting a similar application, Justice Obaga in Manish Govindji Shah & another v Kanwal Sarjit Singh Dhiman & another [2018] KEELC 4494 (KLR) noted, “By ordering a contested document to be subjected to examination does not amount to a court assisting a party to build up his case. The concern of the court is to allow each party an opportunity to fairly urge his case. Document examination is not foreign to civil proceedings. Document examiners have routinely been called to give evidence in Civil Proceedings and once a party shows that there are grounds for such an order, the court cannot hesitate to do so as that is one way of ensuring that justice is done to all parties in civil disputes.” 4 ELCLC NO 073/2025

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12.Regarding the issue of leave for David Gitau Burugu to defend the suit and testify on behalf of the 1st Defendant Wilson Burugu Gitau, filed with the application was a duly executed and a registered Power of Attorney specifically donating to the Donee David Burugu Gitau power to commence, prosecute, defend or continue any action or actions, suit or suits at law and in equity in any of the courts in Kenya and to swear affidavits, issue statements, give evidence and do all such acts as may be necessary to prosecute, defend or continue with such actions or suits to their logical conclusion. There is nothing proffered to subvert or bar the will of the Donor. 13. I therefore find that the applicant’s amended Notice of Motion dated 14th May 2026 has merits and I allow it in the following terms: (I) The thumbprints, handwriting, and signatures on the Acknowledgment of Payment dated June 10, 1975, the transfer Form dated June 5, 1975 and Land Control Board Consent Application dated June 4, 1975 be subjected to forensic analysis by the Directorate of Criminal Investigations (DCI) - Forensic Services. (II) The National Registration Bureau do release official original/certified fingerprint and signature records for Alii Jumaa / Ali Juma Mutua ID No. H.8346 to serve as control samples for purposes of comparison and examination with the questioned documents. (III) That the forensic examiner do prepare and file a forensic fingerprint, handwriting and/or signature analysis report in court within 45 days from the date of this ruling (IV) Leave is hereby granted for David Gitau Burugu to defend the suit and testify on behalf of the 1st Defendant (Wilson Burugu Gitau), pursuant to a registered Power of Attorney. (V) Costs of this application be in the cause. Dated, Signed and delivered at Kwale on this 17th day of September 2026 HON. E.G NDERITU L J ELC KWALE In presence of: Mr Mwangi for the 1st Defenadant/Applicant 5 ELCLC NO 073/2025

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Dr Chitembwe for the plaintiff/Respondent Ms Kiti for the 2nd defendant Ms Halima C/A 6 ELCLC NO 073/2025

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