https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4322

Chemonye v Chemonye & 3 others (Environment and Land Case E009 of 2023) [2026] KEELC 4322 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4322 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case E009 of 2023 CN Ondieki, J July 13, 2026 Between Latuk David Chemonye Plaintiff and Wilson Kibet Chemonye 1st Defendant Bernedetta Jepchirchir Kipruto 2nd Defendant Mark Kipngetich Cherono 3rd Defendant Boniface Cheruiyot 4th Defendant Ruling Part I: Introduction 1.Vide a Plaint dated 6.9.2023 and filed on 8.9.2023, the Plaintiff brought this action against the Defendants primarily seeking Judgment for:i.a declaration that the plaintiff is the lawful owner of the parcel of land known as Kiplombe/Emkwen Block 1 (Kimisto)/26 measuring 10 acres (hereinafter “the suit property”);ii.a declaration that Vincent Kipchumba Ruto (deceased) held it in trust of the plaintiff;iii.that the deceased’s name be removed from the register and substutited with that of the plaintiff;iv.that the 2nd – 3rd defendants be directed to execute transfer documents failing which the Deputy Registrar is authorized by this Court to execute them;v.a permanent injunction against the defendants; andvi.a declaration that the suit has devolved to the plaintiff by way of adverse possession. 2.The Defendants opposed the suit. Part II: The 2Nd – 4Th Defendants/applicants’ Case 3.On 13.4.2026, the 2nd – 4th Defendants/Applicants (hereinafter “the Applicants”) filed a Notice of Motion dated of even date, principally seeking an order that the County Criminal Investigations Officer in-charge of Uasin-Gishu County be directed to subject the contracts dated 14.4.2005 be subjected to forensic examination of the attestation signatures appearing therein. 4.This Application is predicated on the grounds set out on the face of the said Motion and facts deposed in the Supporting Affidavit sworn on 13.4.2026 by the 2nd and 3rd Applicants. 5.On the face of the Notice of Motion, in relation to the suit property, it is averred that the Applicants are the administrators of the estate of Paulo Kimuge Cherono (deceased) and that the said contracts are forgeries and the signature appearing therein was not appended by Paulo Kimuge Cherono (deceased). 6.In the said Supporting Affidavit, the Applicants have rehashed the grounds set out on the face of the Motion. In this connection, the Applicants have exhibited copies of the disputed contracts MB 1a-d. It is deposed further that the deceased used to sign by writing in his name and not by symbols as appearing in the said contracts. 7.The Applicants did not file written Submissions. Part III: The Plaintiff/respondent’s Case 8.The Application is opposed by the Plaintiff/Respondent (hereinafter “the Respondent”). 9.In his Grounds of Opposition dated 17.4.2026 and filed on 20.4.2026, the Respondent deposes that first, this Application is incompetent, frivolous, vexatious and amounts to an abuse of the Court process. Second, it is averred that the Application has been lodged after inordinate delay without a cogent explanation. Third, it is further averred that this Court is being requested to usurp the mandate of independent bodies. Fourth and finally, it is averred that this Court is being requested to aid the Applicants in their fishing expedition. 10.In his written Submissions dated 22.5.2026 and filed on 29.5.2026, learned Counsel Mr. Kibii instructed by the Firm of Messieurs Limo R.K. & Company Advocates representing the Respondent rehashed the contents of Grounds of Opposition. 11.This Court is thus urged to dismiss this Application with costs. Part IV: The 1St Defendant’s Case 12.The Application is also opposed by the 1st Defendant. In his Replying Affidavit dated 8.5.2026 and filed on the even date, the 1st Defendant deposes that first, this Application is frivolous, vexatious and an abuse of the process of this Court. Second, it is averred that the Applicants have failed to disclose any reasonable, credible or legally identifiable ground warranting an order of this Court in the manner desired. Third, it is averred that this Court is being requested to aid the Applicants in their fishing expedition. Fourth, it is averred that the Applicants have hatched a deliberate tactic aimed at delaying of hearing and determination of this matter expeditiously hence undermining administration of justice. 13.The 1st defendant did not file written Submissions. Instead, he elected to rely on the said Replying Affidavit. Part V: Questions For Determination 14.Gleaning from the Notice of Motion; the said Grounds of Opposition; the 1st Defendant’s Replying Affidavit; and the Respondent’s written Submissions, this Court has distilled only one principal question for determination which is whether the Applicants have made a case for an order that the County Criminal Investigations Officer in-charge of Uasin-Gishu be directed to subject the contracts dated 14.4.2005 be subjected to forensic examination of the attestation signatures appearing therein. Part VI: ANalysis And Determination 15.A Court of law is empowered under section 3A and 63 (e) of the Civil Procedure Act (hereinafter “the CPA”) to make such orders as may be necessary for the ends of justice to be met. Further, under section 22 of the CPA, a Court of law is empowered to make such orders as may be necessary in relation to matters regarding to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; issuance of summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; and/or order any fact to be proved by affidavit. 16.In Kenya Power & Lighting Company Limited vs. Benzene Holdings Limited t/a Wyses Paints [2016] eKLR, the Court of Appeal expressed a judicial view and I’m thereby guided that “Section 3A of the Civil Procedure Act appears to have been introduced to augment the provisions of section 3, vesting in the Courts inherent power to make any orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Of course, this power has now been broadened by the introduction in 2009 of overriding objective in sections 1A & 1B and in 2010 by Article 159 of the Constitution.” I am further guided by the rendition of the Court of Appeal in Equity Bank Limited v West Link Mbo Limited (Civil Application 78 of 2011) [2013] KECA 320 (KLR) (Civ) (31 May 2013) (Ruling), at paragraph 59, that “59… Courts of law exist to administer justice and in so doing they must of necessity balance between competing rights and interests of different parties but within the confines of the law, to ensure that the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without its being derived from the Constitution or statute. Such power enables the judiciary to deliver on their constitutional mandate…” 17.I find persuasive the judicial view expressed in Concord Insurance Company Limited (Under Statutory Management) v NIC Bank Limited [2020] KEHC 8086 (KLR), at paragraph 21, regarding the object of discovery, that “One object of this Section is to avoid trial by ambush and to ensure that all material relevant to the just and fair determination of a dispute can be availed to all parties and the Court in good time. As stated by Gikonyo J in ABN Amro Bank N.V v Kenya Pipeline Company Limited [2014] eKLR (a case cited by counsel for Concord), the provisions serve a useful purpose. The Judge held; “Discovery as a compulsory disclosure, at the request of a party, of information that relates to the litigation in a civil suit is provided for in section 22 of the Civil Procedure Act and Order 11 rule 3(2) of the Civil Procedure Rules, and given the nature of discovery, I would class it as a means of access to information in the sense of Article 35(2) (b) of the Constitution. And as Justice Kimondo J stated in the Oracle productions case, I too conclude that “the true purpose of discovery is to level the litigation field, to expedite hearing, reduce costs and allow parties to gauge the case they will face at trial.” It, therefore, serves a higher objective as the enabler of fair hearing.” Further, Black’s Law Dictionary (Black’s Law Dictionary, Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern by Henry Campbell Black, M. A., Ninth Edition), at page 533, defines “discovery” to mean “1. The act or process of finding or learning something that was previously unknown… 2. Compulsory disclosure, at a party's request, of information that relates to the litigation… The primary discovery devices are interrogatories, depositions, requests for admissions, and requests for production. Although discovery typically comes from parties, Courts also allow limited discovery from nonparties…” (Emphasis supplied) 18.In exercising the said powers under sections 3A, 63(e) and 22 of the CPA, the Court should proceed with circumspection in a manner that advances the course of justice as opposed to advancing the Applicant’s case at the expense of the other. Particularly, considering incidence of the burden of proof, it is not anticipated that the jurisdiction and power to order discovery can be exercised in the manner and direction of supporting a fishing expedition. 19.Whereas the norm is that the power of discovery is exercised against a party’s opponent in a suit, in exceptional circumstances, the power can be flexed against a non-party. One of such prominent exceptional circumstance is whenever an Applicant lodged an complaint with the NPS, investigations were concluded and a Report was subsequently prepared, but for legally unwarranted and unjustifiable reasons, the NPS declines or inordinately delays to provide the report to the Applicant. In such event, the power of this Court to under sections 3A, 63 (e) and 22 of the CPA may be deployed since it is then necessary for the ends of justice to be met. 20.First, in their Application, the Applicants have remained silent on whether, upon discovery of this allegation of forgery of the said contracts, they lodged a complaint with the National Police Service (hereinafter “NPS”) including but not limited to the County Criminal Investigations Officer in-charge of Uasin-Gishu County, in order to spark appropriate action within the mandate of the NPS as vested thereupon by the Constitution and statutes thereunder, inclusive the action of carrying out the desired forensic examination of the said disputed signatures in the said contracts. Having failed to do so, through the lens of the doctrine of exhaustion of remedies, this Court cannot be the first port of call for such suspected criminal incidents. This Court is of the persuasion that the nature of the order sought can be sought and secured in a criminal process and this Court is afraid that this civil process cannot be used to further a criminal process. Each process should take its own trajectory and if results come out of the criminal process which are relevant and admissible within the four corners of the Evidence Act, then the Applicants will be at liberty to use the results from the criminal process in this civil process. In the premise, the Applicants have failed to surmount the test of exceptional circumstances in this Application to deserve the Order desired. 21.Second, Court orders are forceful in nature and legally binding, with attendant severe consequences on the occasion of non-compliance. They should thus be wielded cautiously and sparingly, in circumstances where there is absolute need and particularly, where there is deliberate disobedience or deliberate refusal or unlawful indolence or neglect of a legal duty. Having failed to demonstrate deliberate disobedience or deliberate refusal or unlawful indolence or neglect of a legal duty by the NPS and since the NPS does not need an order of this Court in order to execute their lawful mandate, the order sought is unnecessary. 22.Third, this Court concurs with the Respondent’s and the 1st defendant’s position that this Application has been lodged after inordinate delay of a whopping three years after this suit was filed, without a plausible explanation by the Applicants, which grossly offends Article 159(2)(b) of the Constitution which commands that justice shall not be delayed, and the overriding objective of the CPA; the Environment and Land Court Act (hereinafter “ELC Act”); and Rules under both Acts. It will be recalled that the overriding objective (otherwise popularly known as the oxygen principle) of the CPA and the Civil Procedure Rules (hereinafter “CPR”); the ELC Act; Rules made under both the CPA and ELC Act; The Practice Directions on Standardization of Practice and Procedures in the Environment and Land Court, 2025 (hereinafter “PDELC”); is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the said Acts. See section 1A(1) of the CPA; section 3(1) of the ELC Act; and Practice Direction 4 of the PDELC. The framework for giving effect to the oxygen principle resides in the double-edged and symmetrical obligations reposed in both the Court and parties. On one hand, parties and their advocates, if any, are obligated to assist the Court to further the said oxygen principle by inter alia, participating in the processes of the Court and complying with the directions and orders of the Court. See sections 1A(3) of the CPA and 3(3) of the ELC Act. On the other hand, in striking a delicate balance towards attainment of the said oxygen principle, the Court is obligated to progress all matters committed to it for resolution for the purpose of attaining the just determination; efficient disposal; efficient use of the available judicial and administrative resources; the timely disposal thereof to keep in check inter alia the cost element of suits; leveraging suitable technology; and serving the ends of justice in this regard. See section 1B of the CPA; and Practice Direction 23(m) of the PDELC. Accordingly, whenever a Court is construing any of the provisions of the CPA; ELC Act and Rules under both Acts, the Court is enjoined to always train its eye on giving effect to the said oxygen principle. See section 1A (2) of the CPA; section 3(2) of the ELC Act; and Practice Directions 4 & 23(m) of the PDELC. An Application like this – which has been lodged after inordinate delay of a whopping three years after this suit was filed without a plausible explanation and which is thus likely to occasion even more delay - is deemed dilatory and certainly incompatible with the said oxygen principle. Part VII: Disposition 23.Wherefore this Court finds this Application bereft of merit and dismisses it. Needless to add, the Applicants have always been and are still at liberty to lodge a complaint with the County Criminal Investigations Officer in-charge of Uasin-Gishu County, which in any event, considering Article 159(2)(b) of the Constitution and the said oxygen principle in the context of the said inordinate delay on the part of the Applicants, should not derail hearing and determination of this matter. However, if the Signature Forensic Examination Report is ready before hearing of this matter is concluded, this Court may be moved as appropriate. Costs of this Application shall be in the cause. DELIVERED, SIGNED AND DATED IN ELC ELDORET THIS 13TH DAY OF JULY, 2026…………….…………C.N. ONDIEKIJUDGEIn the presence of:Advocate for the Plaintiff/Respondent: N/AAdvocate for the 1st Defendant: N/AAdvocate for the 2nd – 4th Defendants/Applicants: N/ACourt Assistant: Ms. Juma