[2022] KEHC 16505 (KLR)

Kenya Women Microfinance Bank PLC v Michael Okech Ouma t/a Waxcom Enterprises & 2 others (Civil Case E041 of 2021) [2022] KEHC 16505 (KLR) (Commercial and Tax) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16505 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case E041 of 2021

DAS Majanja, J

December 9, 2022

Between

Kenya Women Microfinance Bank PLC

Plaintiff

and

Michael Okech Ouma t/a Waxcom Enterprises

1st Defendant

Joan Wanja Njagi

2nd Defendant

Waxcom Enterprises Limited

3rd Defendant

Ruling

1. Before me is a notice of motion dated June 17, 2022 filed by the 2nd defendant. She seeks an order directing the plaintiff (“the bank”) to produce and deposit in court the original loan application form dated March 16, 2016, chattels mortgage instrument dated March 16, 2017, loan agreement dated March 14, 2016, affidavits of registration of chattels so that they can be forwarded to the Directorate of Criminal Investigations (“the DCI”) for examination by forensic examiners who shall prepare expert reports to be tendered in court.

2. The application is supported by the 2nd defendant’s affidavit sworn on June 17, 2022 and opposed by through the replying affidavit of the bank’s Head of Recovery and Remedial Services, Bessy Mbora, sworn on July 19, 2022.

3. In order to understand the matter, a brief background of the case is necessary. The bank instituted this suit by way of plaint dated January 19, 2021 against the defendants. It advanced a Kshs 22,950,000. 00 credit facility to the 1st defendant secured by registration of chattels mortgage over three Motor Vehicles Registration Numbers KCH 2XXX, KCH 2XXX and KCH 2XX (“the motor vehicles”) upon guarantee by the 2nd defendant. The motor vehicles were registered in joint names of the bank and the 3rd defendant, a company owned by the 1st defendant.

4. The 1st defendant defaulted in the monthly repayment and transferred possession of the motor vehicles to a third party residing in the Democratic Republic of Congo (“DRC”). The motor vehicles were registered in DRC under registration numbers 6344-AL05, 6343-AL05 and 6342-AL05. The bank claims that the 1st defendant’s account was in arrears of Kshs 34,207,125. 10 which the defendants failed to pay and which the bank could not recover as it was unable to exercise right of repossession due to jurisdiction. It therefore seeks judgment for Kshs 34,207,125. 10 against the defendants jointly and severally, interest, a declaration that the removal of the motor vehicles from the limit of jurisdiction is illegal, declaration and that it has a legal interest in the motor vehicles and an order directing the plaintiff to repossess the motor vehicles from DRC or whichever jurisdiction they will be found.

5. The 1st and 3rd defendants filed notice of appointment of advocates but did not file their defence. The 2nd defendant filed a statement of defence and notice to produce dated March 1, 2022. The bank filed a request for judgment and on June 6, 2022, the deputy registrar entered default judgment against the 1st and 3rd defendants for Kshs 34,207,125. 10 with interest and costs.

6. Returning to the application, the 2nd defendant’s case is that she has never entered into any contractual relationship with the bank or guaranteed any loan on behalf of the 1st defendant. She states that was employed by the 3rd defendant and only became aware of the existence of the credit facility when she was served with the plaint. She denies guaranteeing the 1st defendant and claims that the signature used in the guarantee is not hers but a forgery.

7. The 2nd defendant reported the matter to the Directorate of Criminal Investigation Langata under OB NO 51/09/02/2022. She claims that the loan was obtained though fraud and forgery as the loan application was done on May 2, 2016 and guaranteed by Jane Wanja Njagi which is not her legal name. She adds that the 1st defendant signed the application form on February 25, 2016 and the loan approved on March 14, 2016 which was two months before the application was done. She further states that the signatures of the guarantor and borrower on the execution part in the chattels mortgage are similar which indicate forgery. On the basis of the alleged fraud and forgery, the 2nd defendant prays that forensic examiners attached to the DCI examine the documents and prepare an expert report to enable the court adjudicate the matter.

8. The bank opposes the application. It states that forensic reports are only produced in criminal and not in civil proceedings under section 77 of the Evidence Act (chapter 80 of the Laws of Kenya). It contends that in civil proceedings the court has power to ascertain whether a signature or writing is that of a person whom it purports to be of comparing to the actual signature and writing of the actual person. It submits that when the 2nd defendant reported the matter to the DCI in Langata, it was required to furnish all the mentioned documents which it did and upon investigations, the DCI did not confer any charges for the alleged fraud and forgery complaint. The bank states that it has a copy of the 2nd defendant’s identity card in its possession which was provided under the ‘know your customer’ due diligence process whose signature is similar and comparable to the signature in the deed of guarantee. The bank concludes that there is no evidence adduced to show that the fraud was committed.

9. The 2nd defendant seeks the court’s assistance to direct the National Police Service to conduct a forensic examination on the named credit facility documents. It must be borne in mind that in a civil case, a party asserting a position bears the burden of proving that assertion. It is the 2nd defendant who bears the burden of proving the facts that she asserts. In order to ensure fairness, the court has power to direct the parties to produce documents in their power and possession through the process of discovery. The court may in certain circumstances direct a third party to furnish documents (see Palm Oil Transporters Limited v Kenfreight(EA) LimitedHC COMM No E028 of 2020 [2022] eKLR). In this case, the 2nd defendant seeks an order, not directing a third party to furnish documents, but to conduct an investigation. The third party here being the National Police Service through the DCI.

10. This issue is not novel and was considered in detail by the court in Francis Kirimi Nkarichia v David Nkanata Magiri and 7 Others Meru ELC No E004 of 2021) [2022] eklr. in that case the applicants sought orders directing the police to conduct forensic examination of land title documents. The court held as follows:(33)Section 35 (G) of the National Police Service Act No 11A of 2011 allows the Director of Criminal Investigation to undertake forensic analysis while undertaking investigations where a complaint has been lodged as provided by law.(34)Article 245 9 (a) of the Constitution states no person may give a direction to the Inspector General of Police with respect to investigations of any offence or offences. The Inspector General of Police has constitutionally guaranteed independence to ensure investigations are undertaken independently.(35)Even though the applicant states he made an OB report at Kiirua police station, there is nothing to show he has made a follow-up and or specifically lodged a complaint with the DCI Land Fraud Unit. As stated above, the DCI falls under the Inspector General of Police as an independent institution. The Inspector General of Police does not require a court order to undertake its mandate since under section 24 of the National Police Service Act, one of its jurisdiction is to investigate crimes.(41)The court cannot usurp the constitutional mandate of the DCI If the DCI or the Inspector General of Police has failed to act, the applicant has a right to invoke the Fair Administrative Actions Act and sections 8 and 9 of the Law Reform Act for the orders of mandamus and certiorari to compel the DCI or the Inspector General of Police to undertake its constitutional and statutory mandate as held in Republic v Commissioner of Police & Another ex parte Michael Monari & Another [2012] eKLR.(42)After all, under section 194 A of the Criminal Procedure Act, there is no bar for parallel proceedings either civil or criminal prosecutions. See Republic v Attorney General & 4 Others ex parte Diamond Hashim Halji and Ahmed Hasham Halji [2014] eKLR.

11. The thrust of the aforesaid decision is that the National Police Service and Inspector General of the National Police Service are independent institutions under article 245 of the Constitution. They are charged with investigating criminal offences and in that regard, they are may not be directed by any person in performance of their duties. Among the duties imposed on the National Police Service include conducting forensic analysis as provided under section 35 of the National Police Service Act, 2011.

12. It is not in dispute that the 2nd defendant reported the forgery claim to the DCI whereupon the bank provided security documents for investigation. However, after this was done, no criminal proceedings were initiated against the bank or its officers. I hold that it is not the court’s duty direct the DCI to conduct its work. Without belabouring the point, it is clear that the court cannot intervene in a matter which is before the police and whose remedy lies elsewhere other than in these proceedings.

13. It must now be apparent that the 2nd defendant’s application dated June 17, 2022 lacks merits. It is dismissed with costs to the plaintiff.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF DECEMBER 2022. D S MAJANJAJUDGECourt of Assistant: Mr M OnyangoMs Kwamboka instructed by HKM Associates Advocates for the plaintiff.Mr Mwangi instructed by Paul Mwangi and Company Advocates for the 2nd defendant.