Henneth Muthoni Njiru v The Odpp

3. That the cost of this application be provided for. 4. The applicant stated that she obtained the letter from the chief for purposes of a different case and the letter was signed personally by the Chief. When she was charged with the offence stated herein, she requested for an investigation of the signature. However, she said, she had reason to believe that the specimen signature handed over to the investigating body was by a person other than the chief and this was meant to wrongly implicate her. She raised the issue with the trial court but her prayer was denied. She stated that if the orders ought herein are not allowed, she will suffer prejudice and the outcome of the criminal case will possibly prejudice the succession case she is pursuing. Replying Affdavit 5. PC Farah Mohamed of DCI Mbeere North Subcounty who was the investigating officer in the case swore a replying affidavit. He stated that the applicant purported that she was the second wife of the Munyi Rugucha (deceased) and a letter from the chief for succession purposes did not include her. That she reported the chief to the police and later, another letter including her name under the hand of the chief was found. When the police asked the chief about the second letter, the chief disowned the signature on the said letter. PC Farah then summoned the chief and collected a specimen of his signature for investigation purposes. 6. He stated that he forwarded the impugned letter and the specimen signature to a forensic document examiner to ascertain whether the signatures were by the same person, that is the chief. The forensic examiner found that the documents were not authored by the same person and that is when the applicant was charged with the offence. During the hearing, the trial court urged the applicant to save her prayers for the defense case since the area chief was a witness whom she was allowed to crossexamine. He stated that the applicant’s prayer to have the specimen retaken in her presence is a tactic to delay hearing and determination of the matter. The applicant’s Supplementary Affdavit 7. In her supplementary affidavit, the applicant stated that there is no reason for the prosecution to oppose her application if the first specimen signature was collected properly and from the Chief. That no prejudice will be suffered if the specimen is collected afresh and that after close of the prosecution’s case, she would have lost the opportunity to have the signature re-examined. She stated that the issue is one of a preliminary nature, and it would have been in the interest of justice that it be addressed before the hearing commenced. Parties’ Submissions 8. When the court sought to direct the parties to file written submissions, they opted to rely on their filed affidavits instead. Issue for Determination 9. The issue for determination is whether the application has merit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5083/eng@2026-04-22 2

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Analysis and Determination 10. 11. The court has been moved to exercise its revisionary powers over an order of the subordinate court denying the applicant a prayer to have the chief’s signature specimen retaken for analysis. This power of the High Court is bestowed to it under Article 167(6) & (7) of the Constitution which provides: “ (6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. (7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.” Further, Section 362 of the Criminal Procedure Code provides as follows on the High Court’s supervisory jurisdiction: “ The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.” 12. The applicant was charged with the offence of conspiracy to commit a felony contrary to section 393 of the Penal Code and the particulars are that she forged the Chief’s signature. The investigating officer stated that as part of the investigation, he collected the chief’s signature and sent it for forensic analysis alongside the alleged forged document. The specimen was collected in the course of investigation, and in the absence of the applicant who is the accused person. 13. The applicant expressed that she had reason to believe that the specimen collected during investigations was not the Chief’s signature since she had seen his signature on several other documents. Article 50(2) (a) of the Constitution guarantees an accused person the right to fair hearing which includes the rights to be presumed innocent until proven guilty. As an accused person, the applicant also has the right under Article 50(2)(k) of the Constitution to adduce and challenge evidence. The application herein is one of the ways of challenging such evidence. 14. It is noted that the respondent made reasonable efforts to collect the chief’s signature specimen for analysis before the applicant was charged with the named offence. From the pleadings filed, the respondent will not suffer any prejudice in the event that the specimen is retaken and subjected to a fresh forensic analysis. In any event, the fresh analysis will benefit the court, the prosecution and the accused person and will ensure that justice is served across the board. Disposition 15. In light of the foregoing, it is my view that the application should be allowed as prayed in the interest of justice. The application is therefore hereby allowed, and the lower court matter shall proceed expeditiously. 16. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 22ND DAY OF APRIL, 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5083/eng@2026-04-22 3

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R. MWONGO JUDGE Delivered in the presence of: Applicant Present in Court Mogusu for Applicant Mwaniki for DPP No Representation for AG Stella Kithinji - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5083/eng@2026-04-22 4

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