Mwangi v Mwangi & another (Land Case E015 of 2024) [2026] KEELC 3687 (KLR) (17 June 2026) (Ruling)

Mwangi v Mwangi & another (Land Case E015 of 2024) [2026] KEELC 3687 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3687 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Land Case E015 of 2024 MN Gicheru, J June 17, 2026 Between Jane Njoki Mwangi Plaintiff and Henry Kariuki Mwangi 1st Defendant Land Registrar Murang’A 2nd Defendant Ruling 1.This ruling is on the notice of motion dated 12-2-2026. The motion is brought under Section 3A of the Civil Procedure Act, Order 11 rules 3 and 4, Order 16 rule 6 of the Civil Procedure Rules, the Evidence Act and any other provisions of the law. 2.The motion seeks three(3) orders as follows.a.That orders be issued that finger prints in the transfer of land form dated 2-9-1985 be examined to verify if the said fingerprints belong to the late Mwangi Ndonga.b.That a report be filed in court in reference to the same by the National Registration Bureau.c.That the costs be in the cause. 3.The motion is based on five(5) grounds and is supported by an affidavit of the Plaintiff dated 12-2-2026. The gist of the grounds and the affidavit is as follows. Firstly, the Plaintiff’s suit is based on the premise that her father did not transfer the suit land to the Defendant and the transfer form is a forgery. Secondly, the Plaintiff has sought the said report on her own motion and failed. Thirdly this dispute revolves around family land and the Plaintiff will suffer irreparable damage if the required report is not obtained. Finally, the report will assist in the just and expeditious disposal of the matter. 4.The motion is opposed by the first Defendant who has sworn a replying affidavit dated 8-4-2026 in which he responds as follows. One, the Court is not an investigative body and its role is limited to adjudicating disputes based on evidence presented before it. Secondly, the burden of proof lies on the Plaintiff and it is upon her to gather evidence before approaching the Court. Thirdly, the order sought amounts to inviting the court to supervise or direct investigations which is outside its mandate. The proper procedure would be for the Applicant to pursue investigations through the relevant authorities, obtain the expert report independently and then present the report in support of her case. Finally, the application is an attempt to fill evidentiary gaps in the Applicant’s case and the court ought not to entertain this. 5.I have carefully considered the motion in its entirety including the grounds, the supporting affidavit and the replying affidavit. Counsel for the parties agreed that they would not file any written submissions. Proceeding under Order 15 rule 2 of the Civil Procedure Rules, I frame the following issues from the material filed by both sides.a.Whether allowing the motion would amount to the court getting involved in investigations.b.Whether allowing the motion would amount to shifting the burden of proof from the Plaintiff.c.Whether allowing the application would assist the Plaintiff in filling in the gaps in her case. 6.Regarding the first issue, I find that the mere allowing of the motion by the Plaintiff is not tantamount to the Court getting involved in the investigations over an issue pending before it. The Court is merely assisting the Plaintiff surmount a hurdle that she has encountered on her way.If she did not encounter the hurdle, she would not have involved the Court. The Court is indifferent to the outcome of the investigation. The outcome of the exercise is unknown as of now and it could be of benefit to the 1st Defendant. The impartiality and the independence of the Court will not be at risk at all if the Court allows the motion. The neutrality of the Court will remain intact and untainted. 7.By allowing the motion, there will be no change on the burden of proof on the Plaintiff. The Court is totally blind to the outcome of the exercise. The report, whatever its worth will be treated like all other expert reports. It must be tested alongside other competing expert evidence and will not be treated as the gospel truth. The mere filing of the current motion by the Plaintiff is sufficient proof that she realizes that the burden of proof is upon her to prove her case on a balance of probabilities and there is no shifting of this burden to any person or the Court. 8.From what is deposed by the Plaintiff in her affidavit dated 12-2-2026, it would seem that she made effort through the police to obtain a report from the National Registration Bureau but failed.The motion seems to be a last resort. If a party comes to Court and asks for assistance to obtain evidence that assists her to advance the course of justice, it would not be improper of the court to assist that party. It would actually further a fair hearing as envisaged under Article 50(1) of the Constitution. In all this, the 1st Defendant stands to suffer no prejudice because he will be at liberty to question the evidence filed if it incriminates him and to tender other evidence in rebuttal. 9.For the above stated reasons, I find merit in the motion dated 12-2-2026 which I allow.Costs in the cause.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 17TH DAY OF JUNE, 2026.M.N. GICHERUJUDGE.Delivered online in the presence of; -Court Assistants– Jackline and AntonyPlaintiff’s Counsel – Mr. Kimwere1st Respondent’s Counsel - Miss Waithira Mwangi