Mutevesi (Suing as Legal Representative of Mutevesi Lubwa alias Mutevisi Lubwa - Deceased) & another v Imboko & 9 others; Lubwa & 5 others (Interested Parties) [2024] KEELC 13875 (KLR)

Mutevesi (Suing as Legal Representative of Mutevesi Lubwa alias Mutevisi Lubwa - Deceased) & another v Imboko & 9 others; Lubwa & 5 others (Interested Parties) (Environment & Land Case 140 of 2016 & 304 of 2017 (Consolidated)) [2024] KEELC 13875 (KLR) (17 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13875 (KLR)

Republic of Kenya

In the Environment and Land Court at Kakamega

Environment & Land Case 140 of 2016 & 304 of 2017 (Consolidated)

DO Ohungo, J

December 17, 2024

Between

Sulumena Lubale Mutevesi (Suing as Legal Representative of Mutevesi Lubwa alias Mutevisi Lubwa - Deceased)

Plaintiff

and

Chiveu Shamala Imboko

1st Defendant

The County Land Registrar

2nd Defendant

and

Christopher Lubwa

Interested Party

David Shijenje Mukoshi

Interested Party

Timothy Tella

Interested Party

Rodah Weranga Sikolia

Interested Party

Adventist Church E.A Ltd

Interested Party

Isiye Clement Muyabila

Interested Party

As consolidated with

Environment & Land Case 304 of 2017

Between

Chiveu S Imbogo

Plaintiff

and

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, filed by Chiveu Shamala Imboko, the First Defendant in ELCC No. 140 of 2016 who is also the Plaintiff in ELCC No. 304 OF 2017. The following orders are sought in the application:1. That the present application be certified 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 affidavit 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 Affidavit 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 file any response to the application. The application was canvassed through written submissions. The Applicant and Isiye Clement Muyabila filed written submissions. The rest of the parties did not file any submissions.

5. Nevertheless, in oral address to the Court, counsel for the Plaintiffs 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.

6. I have carefully considered the application, affidavits 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 specified 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 conflict 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 find 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 17THDAY OF DECEMBER 2024. D. O. OHUNGOJUDGEDelivered in open court in the presence of:No appearance for the Plaintiff in ELC 304 of 2014Mr Osango for the Plaintiffs 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 2016No appearance for 2nd Defendant in ELC 140 of 2016 and 6th to 8th Defendants in ELC 304 of 2014Mr Getanda for 3rd Defendant in ELC 304 of 2014 and 2nd Interested Party in ELC 140 of 20166th Interested Party in ELC 140 of 2016 present in personCourt Assistant: M Nguyayi