[2022] KEHC 2960 (KLR)
The court found that the withdrawal of the NLC report did not automatically invalidate the forensic report prepared by the late Mr Antipas Nyanjwa, as there was no evidence that the forensic expert failed to follow due process in preparing his report or that he withdrew it himself. The peer reviewer, Mr Japheth...
Source-derived case information.
- Citation
- [2022] KEHC 2960 (KLR)
- Parties
- Respondent: Spencer Elms (Sued As The Personal Representative And Executor To The Estate Of Roger Bryan Robson)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 955 of 2013
- Procedural Posture
- Succession Cause / Ruling on Admissibility of Forensic Report
- Outcome
- objection dismissed; forensic report admitted
- Judges
- MA Odero
- Legal Topics
- Admissibility of Evidence, Forensic Reports, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Spencer Elms (Sued As The Personal Representative And Executor To The Estate Of Roger Bryan Robson)
Respondent
Procedural Posture
Succession Cause / Ruling on Admissibility of Forensic Report
Legal Issues
- 1 Whether the forensic report prepared by the late Mr Antipas Nyanjwa is admissible in evidence despite the withdrawal of the broader NLC report.
- 2 Whether the peer review report by Mr Japheth Oduor can be admitted when the original author is deceased.
- 3 Whether the withdrawal of the NLC report affects the status of the forensic report prepared by the deceased expert.
Ratio Decidendi
The court found that the withdrawal of the NLC report did not automatically invalidate the forensic report prepared by the late Mr Antipas Nyanjwa, as there was no evidence that the forensic expert failed to follow due process in preparing his report or that he withdrew it himself. The peer reviewer, Mr Japheth Oduor, was deemed competent to give evidence on his review, and his qualifications as a forensic expert were not challenged. The court held that Section 33 of the Evidence Act permits the admission of reports by deceased persons, and the objectors' arguments regarding procedural impropriety were not substantiated in relation to the forensic report itself. Therefore, the objection...
Court Disposition
objection dismissed; forensic report admitted
Orders
- The objection to the admissibility of the forensic report is dismissed.
- The witness is allowed to proceed with his evidence.
Full Case Text
Judgment text and source record
21 paragraphs
In re Estate of Roger Bryan Robson (Deceased) (Succession Cause 955 of 2013) [2022] KEHC 2960 (KLR) (Family) (27 May 2022) (Ruling)
Neutral citation: [2022] KEHC 2960 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 955 of 2013
MA Odero, J
May 27, 2022
IN THE MATTER OF THE ESTATE OF ROGER BRYAN ROBSON (DECEASED)
In the matter of
Spencer Elms (Sued As The Personal Representative And Executor To The Estate Of Roger Bryan Robson
Respondent
Ruling
1. The issue before this court is the Admissibility of the Forensic Report prepared by the late Mr Antipas Nyanjwa who passed away on April 2021. At the time when he prepared the Report the said Mr Nyanywa was a Forensic Examiner attached to the National Land Commission (hereafter ‘NLC’). The witness currently on the stand Mr Japheth Oduor is giving evidence in respect of a peer Review report, which he conducted on the report prepared by the late Antipas Nyanjwa.
2. Counsel for the objectors have objected to the production of the NLC Report dated 2nd June 2017 on the grounds that the said report was withdrawn by the NLC in its entirety including the Forensic Report contained therein. Counsel refers the court to a leller dated 12th March 2017 by which the CEO of the NLC indicated to the Advocates for the Executors that the entire NLC Report had been withdrawn. It is alleged that the report was not prepared procedurally leading to its withdrawal.
3. Counsel for the Executors oppose the objection to the report. They submit that the witness who conducted the Peer Report is available for cross-examination by counsel for the Objectors regarding the content of his peer report. They rely on Section 33 of the Evidence Act which deals with the admissibility of reports (statements) prepared by a deceased person. It is submitted that the same report has been relied upon in other court cases. Counsel submits that the objection has no merit and urges the court to dismiss the same.
4. I have considered the oral submissions made by both sides. Firstly, the argument that the witness Mr Oduor is incompetent as he does not work for the NLC has no basis. The witness is being called to present a peer review which he authored of a Forensic Report. To peer review a Document/Report one does not have to work in the same agency as the person who prepared the report. All that is required is that the reviewer have the necessary qualifications to render an opinion on the subject. There has been no challenge at all to the qualifications of Mr Oduor as a Forensic Expert.
5. The objectors have raised the issue that the entire report was withdrawn by the NLC. The witness is not here to comment on the NLC report. He is only here to comment on one aspect of the report being the Forensic Report prepared by Mr Antipas Nyanjwa. This was a report prepared by an expert who is now deceased. There is nothing to repudiate the report made by Mr Nyanjwa. Nobody has discredited the report and Mr Nyanjwa did not himself withdraw his report. There is in my view a distinction between the NLC Report and the Forensic Report prepared by the Document Examiner.
6. The NLC report was withdrawn because it was alleged that due process was not followed in the preparation of that report. However, there is nothing to show that the Forensic Expert failed to follow due process in the preparation of his own report.
7. I am in agreement with the Advocates for the Executors that the witness on the stand is available for cross-examination regarding the peer review which he prepared. I find no merit in this objection. The same is hereby dismissed and the witness is allowed to proceed with his evidence.
DATED IN NAIROBI THIS 27TH DAY OF MAY 2022. …………………………………..MAUREEN A. ODEROJUDGE