[2018] KEHC 705 (KLR)
The court found that there was no record of a similar application for a forensic audit having been made and granted previously. The court emphasized that its role is to determine the real issues between the parties and that it should not exclude evidence that may assist in reaching a just decision. The court held...
Source-derived case information.
- Citation
- [2018] KEHC 705 (KLR)
- Parties
- Plaintiff: John Maina Githaiga; Plaintiff: Paul Kibunyi Mutiro; Defendant: CFC Stanbic Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 400 of 2011
- Procedural Posture
- Civil Case / Ruling on Application for Forensic Audit After Close of Defendant's Case
- Outcome
- application allowed
- Legal Topics
- Bank Account Disputes, Forensic Audit, Evidence Admissibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Maina Githaiga
Plaintiff
Paul Kibunyi Mutiro
Plaintiff
CFC Stanbic Bank Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Forensic Audit After Close of Defendant's Case
Legal Issues
- 1 Whether a forensic audit of the defendant's IT system should be ordered at this stage of proceedings.
- 2 Whether allowing the application would prejudice the plaintiffs.
Ratio Decidendi
The court found that there was no record of a similar application for a forensic audit having been made and granted previously. The court emphasized that its role is to determine the real issues between the parties and that it should not exclude evidence that may assist in reaching a just decision. The court held that the plaintiffs would not suffer prejudice if the forensic audit was allowed, and that such an audit could assist the court in fairly determining the ownership of the monies in question. Therefore, the application for a forensic audit was allowed, with directions for the Deputy Registrar to appoint an independent systems analyst and for the report to be filed within 30 days.
Court Disposition
application allowed
Orders
- The Hon. Deputy Registrar to identify an independent and impartial Systems Analyst to conduct a forensic audit of the defendant's system.
- The report of the forensic audit to be filed within 30 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
CIVIL CASE NO.400 OF 2011
JOHN MAINA GITHAIGA
PAUL KIBUNYI MUTIRO
T/A ORIENT TRANSJOPA SAFARIS................................PLAINTIFF
VERSUS
CFC STANBIC BANK LIMITED...................................DEFENDANT
RULING
Upon the close of the Defendants case MR OGUNDE, Counsel for the Defendant made an application to have a Forensic Audit conducted on the IT System of STANBIC BANK (the Defendant herein). Counsel submits that this exercise would be necessary to enable the court determine the issue in question. Mr. Ogunde indicated that his client would be willing to cater for the cost of this forensic audit to be conducted by an independent Systems Analyst.
Mr. GACHUKI for the Plaintiff opposed the application on the grounds that the same had been made too late in the day. He submits that a similar application had been made earlier before Hon. Lady Justice Olga Sewe. That the orders sought were granted but no action was taken by the Bank. Counsel submits that this application is nothing but a delaying tactic intended to hold the Plaintiffs hostage.
I have considered the application as well as the reply made on behalf of the Plaintiffs. I have perused the proceedings before Hon Justice Sewe but I have not found any point during those proceedings where a similar application was made. The only application which was made before the Hon Judge was an application for an adjournment which was allowed by the court on 13th December 2017.
The purpose of any hearing is for the court to make its determination on the issue or issues between the parties. In this case the live issues between the parties is the ownership of the monies in question. The court ought not to shut out any evidence which would enable it reach a just determination of the matter in issue between the parties. In my view the Plaintiffs stand to suffer no prejudice if the present application is allowed. Indeed the Plaintiff ought to welcome any measures which may be taken to assist the court to reach a fair and just determination of the case.
Accordingly I do hereby allow the present application. I direct that the Hon. Deputy Registrar identify an independent and impartial Systems Analyst to conduct a forensic audit of Defendants system. The report to be filed within 30 days. Each party is at liberty to apply.
Dated in Nairobithis day of 2018
Ruling delivered in open Court on 21st December 2018
Delivered in open Court.
……………………………..
Justice Maureen A. Odero