Kitano v Athman (Miscellaneous Application E003 of 2024) [2025] KEHC 19542 (KLR) (16 May 2025) (Ruling) Neutral citation: [2025] KEHC 19542 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA MISCELLANEOUS APPLICATION E003 OF 2024 G MUTAI, J MAY 16, 2025 BETWEEN MASHASHI KITANO ............................................................................ PETITIONER AND AMINA OBO ATHMAN ..................................................................... RESPONDENT RULING 1. On 18th July 2024, the applicant herein filed an application vide which he sought to have orders I had issued compelling his physical appearance during the hearing of the summons for revocation of the grant that was slated for 3rd October 2024 dispensed with and for him to attend court virtually. 2. After considering the matter, this court vide a decision delivered on 20th September 2024 declined to allow the application. In the said decision, I stated as follows:“ 10. Although the alleged applicant is said to be elderly, that in itself cannot prevent him from travelling; no particulars of his ill health were provided.” 3. I therefore ordered that the hearing scheduled for 3rd October 2024 proceed in open court as scheduled. On the said date, Mashashi Kitano did not appear. However, there was a virtual attendance by an individual, who was identified as Mashashi Kitano, by his counsel, on 26th February 2025. The said person couldn’t speak English and relied on a minder to interpret what he was saying. The qualifications or the credibility of the said minder/interpreter could not, however, be established. 4. Vide and application dated 20th February 2025, the applicant seeks the following orders:1. Spent; 2. That this honourable court be pleased to order that the Director of Criminal Investigations do conduct a forensic examination on the following documents:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19542/eng@2025-05-16 1
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a. Order dated 10th June 2010 issued by the Hon Justice Ibrahim Mohamed, pursuant to Misc. Application No 10 of 2010 (OS); b. Grant of letters of administration dated 2nd May 2013 issued by the Hon Lady Justice Maureen Odero; c. Certificate of confirmation of grant dated 7th December 2024 issued by the Hon Lady Justice Maureen Odero; and d. That costs of this application be provided for. 5. It was deposed in support of the application that the documents meant for examination involved highranking members of the Judiciary, whose reputation is of paramount importance, and that for the forensic examination to be done, it was necessary to involve the Directorate of Criminal Investigations. The applicant stated that it would be in the interest of justice to allow the application. 6. The application was opposed through an affidavit of Amina Obo Athman. The deponent urged that the application was without merit and should be dismissed. 7. I have considered the submissions of the parties. In my view, the application is without merit and is very oppressive. The issue in these proceedings, as succinctly stated by the respondent in her affidavit, is the existence of Mashashi Kitano. Whether or not the said gentleman is alive could easily be established if the said person were to be produced in court in Kenya. 8. If the said person is indeed alive, then a basis for forensic examination of the court documents would have been laid. Subjecting senior officers of the Judiciary to investigations as proposed without a proper basis being laid is unjust and oppressive. The court notes that the applicant has been brought to court more than 12 years after the said senior Judicial Officers made the impugned decisions. The subject court file has, by separate proceedings, been alleged to be lost. 9. In the circumstances, I decline to allow the application dated 20th February 2025. The same is dismissed with costs. 10. It is so ordered. DATED AND SIGNED IN MOMBASA THIS 16TH DAY OF MAY, 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of:Mr Maina, for the Applicant; Mr Omwancha, for the Respondents; and Arthur - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19542/eng@2025-05-16 2
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