[2017] KEHC 4980 (KLR)
The court found that the issues raised by the defendant regarding the admissibility and privilege of the forensic investigation report constitute triable issues that cannot be determined at the interlocutory stage. The appropriate forum for resolving such matters is at the full hearing of the suit. Consequently, the...
Source-derived case information.
- Citation
- [2017] KEHC 4980 (KLR)
- Parties
- Plaintiff: David Mwangi Mburu; Defendant: KPMG Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 367 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed; case transferred to Employment and Labour Relations Court
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Forensic Investigation Reports, Legal Privilege, Admissibility of Evidence, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mwangi Mburu
Plaintiff
KPMG Kenya
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the forensic investigation report is legally privileged and inadmissible in the proceedings.
- 2 Whether the suit should be struck out or the forensic report expunged from the record.
- 3 Whether the application raises triable issues that can be determined at this stage.
Ratio Decidendi
The court found that the issues raised by the defendant regarding the admissibility and privilege of the forensic investigation report constitute triable issues that cannot be determined at the interlocutory stage. The appropriate forum for resolving such matters is at the full hearing of the suit. Consequently, the defendant's application to strike out the suit or expunge the report was dismissed. The court further noted that the dispute is a labour matter and directed the transfer of the case to the Employment and Labour Relations Court for hearing and determination.
Court Disposition
application dismissed; case transferred to Employment and Labour Relations Court
Orders
- The defendant's application is dismissed.
- The case file shall be transferred to the Employment and Labour Relations Court for hearing and determination.
Full Case Text
Judgment text and source record
15 paragraphs
REPBULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. NO. 367 OF 2011
DAVID MWANGI MBURU ………………….....…… PLAINTIFF
VERSUS
KPMG KENYA……………………………………. DEFENDANT
RULING
This is a suit by the plaintiff against the defendant which is still pending determination. The suit is premised on what appears to be an employment dispute between the plaintiff and a client of the defendant. At the centre of the dispute is a forensic investigation report said to have been prepared by the defendant.
There is already concern on the part of the defendant as to the use of the report in the plaintiff’s pleadings and admissibility thereof. As a result, the defendant filed an application seeking orders of either the striking out of the suit or the expunging of the draft factual findings of the forensic investigation report.
The main reasons for seeking such orders are that the said report was legally privileged and illegally obtained by the plaintiff, and that the defendant never consented to the use of the report by the plaintiff. The application is opposed by the plaintiff who filed grounds of opposition.
I have looked at the pleadings of the parties, that is the plaint, the defence and reply to the defence. It is clear that the orders sought by the defendant are identifiable triable issues which cannot be addressed through an application such as the one presented by the defendant. For that reason alone the application must fail. It is therefore dismissed.
I note that this is a labour dispute. I order that this case file shall be transferred to the Employment and Labour Relations Court for hearing and determination. The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 6th Day of April, 2017.
A.MBOGHOLI MSAGHA
JUDGE