https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3991

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET** **ELCL CASE NO. E012 OF 2025** **NAUMI CHEPCHUMBA MUTWOL (Suing as the administrator of the estate of Late Paul Malakwen Mutwol-Deceased)…………………………PLAINTIFF** **VERSUS** **KIBOR ARAP BUSIENEY…………………………………………...DEFENDANT** **RULING** 1. This ruling pertains to an application by way of a Notice of Motion dated 9th October 2025 by the applicant/plaintiff through M.A Ingutia and Company Advocates seeking the orders infra; 2. Moot 3. That the respondent herein be and is hereby compelled to produce the original copies of the purported sale agreements and any other related documents now relied upon by the respondent in these proceedings. 4. That the said original documents be released to forensic examination and analysis by an independent expert to be agreed upon by the parties or as directed by this honourable court. 5. That the cost of the forensic examination be borne by the applicant in the first instance, but that the costs be in the cause. 6. That the substantive application and or hearing of the main suit held in abeyance pending the outcome of the forensic examination, in the interest of justice and procedural fairness. 7. That such further or other order be made as this Honourable court may deem just and expedient in the circumstances. 8. The basis of the application is the applicant’s affidavit of thirteen paragraphs sworn on even date and the annexed documents inclusive of a copy of a tribunal’s decision (N.C.M-02) and a copy of the response from the respondent (N.C.M-02) as well as grounds set out on its face. The applicant stated in part, that the documents sought to be examined, specifically, the sale agreement now produced by the respondent are central to the dispute before this court and that dispute which was determined by a tribunal. That the authenticity and integrity of the document now introduced is disputed as the original is in possession of the respondent, and it is imperative that they undergo forensic analysis prior to the continuation of the main suit. 9. By his 13-paragraphed replying affidavit sworn on 17th November 2025, the respondent through Anassi Momanyi and Company Advocates, opposed the application. He averred, inter alia, that the original documents of land were retained by the deceased and the lands office hence, he is unable to produce them. That the applicant is seeking to gather evidence through the court. That the applicant does not need a court order to have copies of the documents tendered by the respondent, investigated and verified. 10. The respondent therefore, termed the application unmerited and an abuse of the Honourable Court. That thus, the same be disallowed with costs to the respondent. 11. The application was heard by way of written submission further to this Honourable court’s directions of 19th March 2026 and **Order 51 Rule 16 of the Civil Procedure Rules 2010.** 12. By the applicant’s submissions dated 18th March 2026, reference was made to the application inclusive of the orders sought in the application brought under, inter alia, **section 13 Environment and Land Court Act, 2015 (2011), Order16 Rule 6 of the Civil Procedure Rules 2010**. Five issues for determination including whether the respondent should be compelled to produce the original agreements for forensic examination before the hearing of the suit, were delineated in the submissions. In discussing the issues, it was submitted that it is the respondent who introduced the impugned sale agreements bears the burden of proving the authenticity and validity of those agreements under sections 107, 108 and 109 of the Evidence Act Chapter 80 Laws of Kenya Substantive hearing of the main suit be held in abeyance pending the outcome of the forensic examination of the disputed sale agreements to avoid prejudice and wastage of precious judicial resources. 13. In addition, it was the applicant’s submissions that the parties to agree on an expert within a reasonable time failure of which the court to exercise its discretion to appoint a suitable expert with costs to be borne by the applicant and costs of the application be in the cause pursuant to the proviso to **section 27 (1) Civil Procedure Act Chapter 21 Laws of Kenya.** That under **section 13 of the Environment and Land Court Act 2015 (2011) and section 3A of the Civil Procedure Act Chapter 21 Laws of Kenya**, this Honourable Court has the jurisdiction to grant the orders sought in the application. Further, reliance was made on section 48 of the Evidence Act (Cap 80) and Article 50 (1) of the Constitution of Kenya 2010 alongside the case of **Mutungi vs FEP Sacco Society Limited & 2 others {2023} KECA 4 (KLR) and Re Estate of Jackson Kibor (Deceased) (2024) eKLR** on principles governing admission of forensic evidence to buttress the submissions. That the applicant has established proper basis for the orders sought in the application in the interest of justice. 14. In the submissions dated 24th March 2026, learned counsel for the respondent referred to the prayers in the application including that the hearing held in abeyance herein. That this matter is yet to be certified for hearing because there is a pending application for injunctive relief by the applicant. That the court cannot order the respondent to produce the original land sale agreement as clearly stated in paragraph 10 of the replying affidavit that the respondent is unable to produce or tender the original sale agreements herein which is not challenged. 15. So, counsel submitted that it would be an exercise in futility to allow the application. That courts cannot grant orders which are incapable of obedience owing to non-availability of the original document as sought in the application. That it is upon the applicant who has asserted the defendant’s alleged acquisition of the suit land to prove the same and cannot shift the burden of proof thereof to the respondent. That the court cannot assist the applicant to gather evidence in support of the plaintiff’s case hence, disallow the application with costs to the respondent. 16. In the foregone, is there merit in the instant application? 17. Apparently, the application was generated prior to the case conference. **Order 11 Rule (3) (2) (d) of the Civil Procedure Rules 2010** stipulates that at the case conference, the court may order the giving of evidence on the basis of affidavit evidence or give orders for discovery or production or inspection or interrogatories which may be appropriate to the case. The said orders for pre-trial discovery at the case conference are in the spirit of access to information under **Article 35 (2) (b) of the Constitution of Kenya 2010.** 18. It is trite law that pretrial discovery is a fundamental tool of justice for production of documents deemed strictly necessary to resolve the matter in dispute; **ABN Amro Bank N. V.V-vs-Kenya Pipeline Co. Ltd (2019)KECA 499 (KLR).** 19. The respondent denied being in possession of the purported original sale agreements. At paragraph 10 of his Replying Affidavit to the application, he averred thus; ‘*The original documents of land were retained by the deceased and lands office and I am unable to produce them.’* 1. Clearly, the respondent confirmed on oath that the original documents in issue are not in his possession, custody or control. The application concerns is tailored to production of documents which are not available with the respondent hence, the law cannot compel a party to do the impossible. 2. The applicant is seeking production of the documents for forensic examination and I bear in mind opinion of experts under sections 48 to 54 of the Evidence Act Chapter 80 Laws of Kenya. Further, I take into consideration, inter alia, Orde 16 Rule 6, section 13, Article 50 (1), Mutungi and Kibor cases (all supra) herein. 3. Furthermore, this Honourable court is conscious of sections 107, 108 and 109 (supra) on the burden of proof. In the case of **Zakayo Michubu Kibuange vs Lydia Kaguna Japheth & 2 others (2014] KECA 822 (KLR),** the Court of Appeal emphasized the principle, that he who alleges must prove. 4. In that regard, it must be appreciated that while primary evidence is fundamentally required as the most reliable proof, secondary evidence is permitted if a proper basis is laid as to why the original document is missing or is not in the power of the witness to produce it; see also **Lwangu vs Ndote {2021} KEELC 2 (KLR).** 5. This Honourable court has noted that matter is yet to undergo case conference as provided for under Order 11 (supra). Further, the parties would be at liberty to implore the court to invoke the Rules of secondary evidence and Adverse inference appropriately as regards the alleged sale agreements that feature in this application. 6. It is therefore, the finding of this court that the orders sought in the application are farfetched. Instead of attempting discovery at the case conference and perhaps application of rules of evidence and adverse inference during hearing of the suit, the applicant is simply on a fishing expedition by this application. 7. Wherefore, the application dated 9th October 2025 originated by the applicant/plaintiff is devoid of merit. The same is hereby disallowed with costs in the cause. 8. It is so ordered. **Dated** and **Delivered** at **Kapsabet** this **30th day of** **June 2026.** **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. Ms. M. Ingutia learned counsel for the applicant/plaintiff 2. Mr. E. Momanyi learned counsel for the respondent/defendant 3. Walter, Court Assistant