Teresia Njoki Njoroge (Suing as the legal Representative of the Estate of Daniel Njoroge Kibugi (deceased)) v Anastacia Njoki Karimi (Legal representative of Francis Murage (deceased))

b) This Honourable Court be pleased to issue an order directing the Directorate of Criminal Investigations laboratory (DCI), or through any other its forensic qualified and independent government forensic document examiner, to conduct an independent forensic examination of the disputed signature of the late Daniel Njoroge appearing on the Agreement for Sale and Acknowledgment of Receipt of Purchase Price both dated 15 th March 1994 comparing them against the known signatures of the late Daniel Njoroge on the Kenya Power & Lighting Company Supply Agreement dated 30th December 1991 and a letter dated 8th February 1992. c) The Directorate of Criminal Investigations (DCI) be ordered to file a comprehensive forensic report before this Honourable Court within such reasonable time as this Honourable Court may direct. d) The two conflicting forensic reports dated 23 rd November 2017 and 19th April 2021 prepared by Emmanuel Karisa Kenga be excluded from evidence or, in the alternative, be given no or minimal weight, on account of the irreconcilable conflict of interest arising from the same examiner having been engaged by both ELC NO. 127 OF 2016 parties' advocates RULING to produce 2

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diametrically opposing reports in the same matter. e) Costs of this application be borne by the Defendant/Respondent. f) This Honourable Court be pleased to issue any other order it deems just and fit in the circumstances. 2. The Motion is supported by the affidavit of Annastacia Njoki Karimi, the Defendant/Applicant. She stated that the suit concerns the disputed ownership of Plot No. P5113, Embakasi Ranching Company Limited; that the Plaintiff's claim is anchored on an agreement for sale and an acknowledgement of receipt of purchase price, both dated 15th March 1994, allegedly executed between the late Daniel Njoroge as vendor and the late Francis Karimi Murage as purchaser and that the Plaintiff alleges that the said documents are fraudulent on account of the purported forgery of Daniel Njoroge's signature. 3. She explained that the Plaintiff's advocates, Ranja & Co. Advocates, instructed Emmanuel Karisa Kenga, a retired Commissioner of Police and self-described forensic document examiner, to examine the disputed signatures and that Mr. Kenga prepared a report dated 23 rd November 2017 concluding that the questioned signature bore no similarity to the known specimen signatures and had been authored by a different person. ELC NO. 127 OF 2016 RULING 3

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4. She further averred that advocates, Mwanzia & instructed the expert same Co. the Defendant's Advocates, to former subsequently undertake a similar examination, following which he prepared a second report dated 19th April 2021, reaching a diametrically opposite conclusion that the questioned and specimen signatures were authored by the same person. 5. As a consequence, she noted, there are two contradictory forensic reports prepared in the same proceedings at the instance of opposing parties, each favourable to the party instructing him; that this constitutes a clear conflict of interest, thereby undermining the expert's independence, and credibility and that permitting the suit to proceed on the strength of such contradictory expert evidence would occasion a miscarriage of justice contrary to Article 50(1) of the Constitution. 6. She further deponed that she had been advised by her advocates that the Directorate of Criminal Investigations (DCI) maintains Examination an accredited Laboratory staffed Forensic by Documents qualified and independent government forensic examiners capable of conducting an impartial examination of the disputed signatures. She averred that the DCI is the appropriate body to undertake the forensic examination so as to furnish the court with reliable expert evidence on the central issue in dispute. ELC NO. 127 OF 2016 RULING 4

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7. She urged that this court has jurisdiction under Sections 3A and 3B of the Civil Procedure Act, Order 26 of the Civil Procedure Rules, Section 13 of the Environment and Land Court Act, and Articles 50 and 159 of the Constitution to grant the orders sought. Finally, she asserted that unless the application is heard and determined before the scheduled hearing date, the suit will proceed on the basis of the impugned forensic reports, thereby occasioning substantial prejudice to the administration of justice and to the Defendant/Applicant. 8. In response to the Motion, the Plaintiff/Respondent, Teresia Njoki Njoroge swore a replying affidavit dated 28 th April, 2026. She deponed that the present Motion is a procedural sham, and a desperate attempt to derail a trial that is already at an advanced stage. 9. She explained that this matter is part-heard, the Plaintiff’s primary witness having already testified and been crossexamined. Similarly, the Forensic Document Examiner, Emmanuel Karisa Kenga, already took the stand, produced his report dated 23rd November 2017, and was subjected to exhaustive cross examination by the Defendant's former counsel. 10. According to the Plaintiff/Respondent, at no point during the cross-examination of the expert witness did the Defendant challenge the technical findings of the first report or suggest that the expert was incompetent or conflicted and that the Defendant's sudden “apprehension” ELC NO. 127 OF 2016 RULING 5

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is a convenient legal fiction invented only after the close of the Plaintiff's expert evidence. 11. She explained that as advised by counsel, the Defendant's application is a gross violation of the “overriding objective” ("Oxygen") Principle enshrined in Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution, which mandates the "expeditious disposal" of cases, the suit having been pending since 2016 and that the Defendant has remained in continuous possession of both forensic document examiner reports since the discovery phase. 12. She urged that the current prayer for a stay of proceedings constitutes 'litigation by instalments’ rather than a search for justice, a practice strictly proscribed by judicial precedent. It was urged that the court must not allow its process to be used to the "irritation and annoyance" of an opponent and the Defendant must not be allowed to use the judicial process to foster mischief and to perpetuate a clear abuse of the process. 13. As further advised by counsel, she stated, the Defendant's engagement of a new counsel is not a sufficient cause to reset a trial; that a new advocate on record must take the case as he found it hence the Defendant's claim of "newly discovered" conflict is a legal "afterthought" designed to fill gaps in a failing defence, a manoeuvre explicitly prohibited by the courts. ELC NO. 127 OF 2016 RULING 6

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14. The Defendant, she urged, is the sole architect of her own misfortune having purposefully engaged the Plaintiff's expert for a specific evaluation based on a different evidentiary set. As such, she is now effectively precluded from claiming a conflict in a situation intentionally created. 15. Without prejudice, she stated, should the court accept the Defendant's contention and find an irreconcilable conflict between the two forensic examination reports as alleged by the Defendant, it follows that the report procured by the Defendant is fundamentally tainted and inadmissible and ought to be expunged from the record on the basis that the expert, having been first retained by the Plaintiff, owed a primary fiduciary duty to the Plaintiff which precludes the issuance of a subsequent, conflicting report for the opposing party. 16. She maintained that the Defendant's application to exclude both reports is a "scorched earth" tactic intended to neutralize the Plaintiff's credible evidence and that the Defendant cannot invite an expert to create a conflict and then use that very conflict to strike out the Plaintiff's primary evidence. 17. Under Section 76 of the Evidence Act, she stated, this court possesses the inherent power to compare disputed signatures; that there is as such no justification for suspending the proceedings indefinitely pending a report from the Directorate of Criminal Investigations when the impugned documents are already before the court. She ELC NO. 127 OF 2016 RULING 7

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maintained that the court can exercise its discretion to compare and verify the signatures in situ, thereby ensuring that the hearing is not delayed by what she termed an unnecessary diversion. 18. Finally, she averred that the present application is frivolous, vexatious, and brought in bad faith with the sole objective of derailing a suit that has been pending for over ten years through a mid-trial ambush. She urged the court to dismiss the application with costs, including costs personally against the Defendant's advocate. 19. Vide a supplementary affidavit dated 5th June, 2026, the Defendant reiterated the contents of her affidavit in support of the instant application and further deponed that the Plaintiff’s characterization of a legitimate application in such pejorative terms is itself indicative of her anxiety regarding the integrity of her own forensic evidence. 20. She conceded that the matter is part-heard and that Mr. Kenga has testified and been cross-examined. However, she urged, this does not cure the conflict arising from his contradictory reports for opposing parties in the same suit but rather underscores the need for an independent and impartial forensic examination. 21. She further deponed that the identification and disclosure of the conflict by her newly appointed advocates was an exercise of diligent and competent legal representation, and not an afterthought. She maintained that the Plaintiff cannot legitimately contend that such a manifest conflict of ELC NO. 127 OF 2016 RULING 8

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interest should be disregarded merely because it was not raised by her previous advocates. 22. She urged that the overriding objective requires the just determination of disputes on the basis of reliable and untainted evidence, noting that determining this matter on the strength of contradictory forensic opinions from a conflicted examiner would undermine that objective, as justice cannot be founded on compromised evidence. 23. She urged that while the decade-long duration of this suit is regrettable, it cannot justify reliance on questionable forensic evidence and that the length of these proceedings cannot be used to cure or legitimize tainted expert evidence. 24. She also explained that at the time they commissioned the second forensic report, her former advocates were not aware Mr. Kenga had already been retained by the opposing party in the same matter. She contended that the responsibility for the resulting conflict rests primarily with Mr. Kenga, who accepted instructions from both sides without disclosure, contrary to the professional and ethical obligations expected of an expert witness. 25. She maintained that the Plaintiff’s concession that the two forensic reports are irreconcilable only reinforces the existence of the conflict of interest. Accordingly, she argued that expunging only the second report would unfairly leave the Plaintiff’s impugned report unchallenged and deprive the court of independent expert evidence. ELC NO. 127 OF 2016 RULING 9

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Submissions 26. The Defendant/Applicant filed written submissions dated 7th June, 2026. Counsel submitted that under Section 48 of the Evidence Act, expert evidence is admissible only where it is impartial and independent, the expert's paramount duty being owed to the court rather than to the instructing party. Reliance was placed on Maina Thiongo v Republic [2017] KEHC 8330 (KLR), where the court, citing Davie vs Edinburgh Magistrates(1933) SC 34, 40 through Cross on Evidence, 5th Edition, at page 446, emphasized that an expert must provide the court with objective independently scientific assess the criteria to accuracy of enable it to the expert's conclusions. 27. Counsel submitted that by accepting instructions from opposing parties and producing diametrically opposed conclusions, the expert had demonstrated an inability to provide reliable scientific assistance to the court. Cited in support was National Justice Compania Naviera SA vs Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68. 28. Counsel rejected the Plaintiff’s contention that the court could simply compare the disputed signatures under Section 76 of the Evidence Act. It was submitted that although the provision permits the court to compare handwriting, the power is discretionary and does not displace the need for expert evidence under Section 48 of ELC NO. 127 OF 2016 RULING 10

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the Evidence Act. According to counsel, the present dispute concerns not merely the comparison of signatures, but the reliability of the only expert evidence on record, which had been compromised by a manifest conflict of interest. 29. It was urged that the application is not frivolous nor vexatious but is aimed at safeguarding the integrity of the judicial process. Reliance was placed on Muchanga Investments Ltd vs Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, where the Court of Appeal defined abuse of process as the use of judicial proceedings for purposes extraneous to the pursuit of truth. Counsel argued that the present Motion is a bona fide application intended to ensure that the court determines the dispute on the basis of reliable evidence. 30. On the prayer for stay of proceedings, counsel submitted that the court has inherent jurisdiction under Section 3A of the Civil Procedure Act to stay proceedings where the interests of justice so require. Reliance was placed on Macharia & Another vs Michieka [2025] KEHC 15471 (KLR), which approved the principles in Re Global Tours & Travel Ltd, to the effect that the court must weigh the competing interests of justice, including the need for expeditious disposal of cases and the prejudice likely to be suffered by the parties. ELC NO. 127 OF 2016 RULING 11

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31. The Plaintiff/Respondent did not file submissions as at 21 st July, 2026, having been granted 14 days on 1 st July, 2026 to do so. Analysis and Determination 32. Having considered the Motion, the affidavits and submissions, the sole issue falling for determination is whether the Defendant/Applicant has established sufficient grounds for the court to order a fresh independent forensic examination, and exclude the forensic reports 23rd November 2017 and 19th April 2021. 33. The Defendant/Applicant seeks orders striking out the forensic examination reports filed by the parties and directing the Directorate of Criminal Investigations (DCI) to undertake an independent forensic examination of the disputed signature of the late Daniel Njoroge appearing on the sale agreement and acknowledgment of receipt both dated 15th March 1994. 34. The proposed examination is to compare the disputed signatures with the late Daniel Njoroge's known signatures appearing on the Kenya Power & Lighting Company Supply Agreement dated 30th December 1991, and a letter dated 8th February 1992. 35. To facilitate the proposed examination, the Defendant further seeks an order compelling the Plaintiff to produce the original, or in the alternative, legible certified copies of the Kenya Power & Lighting Company Supply Agreement ELC NO. 127 OF 2016 RULING 12

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dated 30th December 1991, and the letter dated 8th February 1992. 36. The application is principally founded on the contention that the two forensic reports prepared by Emmanuel Karisa Kenga on behalf of opposing parties in the same proceedings are irreconcilably rendering them unreliable contradictory, and thereby necessitating an independent forensic examination. 37. The Plaintiff, on the other hand, opposes the application on the grounds that the matter is already part-heard, that the expert witness testified, produced his report and was extensively cross-examined without any objection as to his competence or alleged conflict of interest, and that the present application constitutes nothing more than an attempt to reopen the Plaintiff's case and introduce fresh evidence after the commencement of trial. 38. At the outset, it is not in dispute that these proceedings have progressed beyond the pre-trial stage. The hearing is already underway, the Plaintiff having closed her case. The Plaintiff's forensic document examiner has testified, his report has been formally produced as an exhibit, and he has been subjected to cross-examination by counsel for the Defendant. 39. The orders sought would, in effect, require the court to permit the introduction of additional evidence after the trial has already commenced. The principles governing the ELC NO. 127 OF 2016 RULING 13

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exercise of the court's discretion in such circumstances have been developed through judicial precedent. 40. The Supreme Court in Odinga & 7 Others vs Independent Electoral and Boundaries Commission & 3 Others [2013] KESC 1 (KLR) emphasized that litigation must be conducted within prescribed timelines so as to guarantee fairness to all parties. The court observed that additional evidence should only be admitted sparingly and where its admission does not occasion prejudice to the opposing party or undermine the orderly conduct of proceedings. The court cautioned that where new evidence is substantial and incapable of effective response by the opposing party, the court ought to exercise considerable restraint before admitting it. 41. The same principles were reaffirmed by the Supreme Court in Attorney General vs Zinj Limited [2021] eKLR, where the court held that before admitting additional evidence, the court must be satisfied, among other considerations, that the evidence is directly relevant to the issues in dispute; it could not, with reasonable diligence, have been obtained and produced during trial; it is necessary to remove doubt over the issues before the court; it is not intended to fill gaps or patch up weaknesses in a party's case; and its admission will not occasion undue prejudice or unnecessarily delay the determination of the dispute. ELC NO. 127 OF 2016 RULING 14

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42. Equally instructive is the decision in Kanyarkwat Group Ranch & 4 Others v Joseph & 3 Others [2022] KEELC 15037 (KLR) where the court discouraged the practice of parties seeking to introduce evidence in instalments after the commencement of trial. 43. The court emphasized that litigation should not become an exercise of withholding evidence only to seek its introduction when weaknesses in a party's case become apparent. A litigant seeking leave to introduce further evidence bears a heavy burden of demonstrating that, despite exercising due diligence, the evidence could not reasonably have been produced earlier. 44. In the present case, the alleged conflict arises from two forensic reports dated 23rd November 2017 and 19th April 2021, both of which have been within the Defendant's knowledge and possession for several years. No satisfactory explanation has been offered as to why the issue was not raised immediately after the second report was prepared, during pre-trial directions, or at the very least before the expert witness testified sometime in 2024. 45. Instead, the application has been brought after the expert has already testified and been fully cross-examined, with one of the impugned reports already forming part of the evidentiary record. 46. While the Defendant attributes the delayed discovery of the alleged conflict to her newly appointed advocates, that explanation cannot suffice. A change of advocates does not ELC NO. 127 OF 2016 RULING 15

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reset proceedings nor entitle a litigant to revisit strategic or evidentiary decisions previously made during the conduct of a trial. 47. Indeed, litigation must attain a degree of finality, and parties remain bound by the manner in which their cases have been prosecuted, save in exceptional circumstances. Were courts to permit every newly instructed advocate to re-open evidentiary questions previously available to earlier counsel, the orderly and expeditious determination of disputes would be seriously undermined. 48. Moreover, the Defendant has not demonstrated that the material now sought could not, with the exercise of reasonable diligence, have been procured earlier. The alleged conflict was apparent from the face of the two reports themselves. If indeed the Defendant considered the second report compromised, nothing prevented her from independently engaging another qualified forensic examiner before trial commenced. 49. Equally, nothing prevented her from raising the alleged conflict before the expert testified, or during the testimony of the expert. The court cannot now intervene by directing the Directorate of Criminal Investigations to undertake a fresh forensic examination merely because the Defendant has, at this late stage, reconsidered the evidentiary strategy previously adopted. 50. The court is equally unable to accept the Defendant's invitation to exclude both forensic reports solely on ELC NO. 127 OF 2016 RULING 16

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account of the alleged conflict. The existence of contradictory expert opinions does not, without more, render both reports inadmissible. I say so because the law recognizes that expert evidence is advisory in nature and is never binding upon the court. The credibility, independence, consistency and weight to be attached to such evidence are matters to be evaluated by the court alongside the entirety of the evidence presented during trial. 51. Any inconsistencies, contradictions or circumstances surrounding the preparation of the reports remain matters that go to weight, rather than admissibility and can adequately be addressed in the court's final evaluation of the evidence. 52. Ultimately, the orders being sort will occasion further delay in a matter that has been pending since 2016, and permit the Defendant to remedy deficiencies that ought reasonably to have been addressed long before the hearing commenced. Such a course would be inconsistent with the principles governing the admission of additional evidence, the overriding objective under Sections 1A and 1B of the Civil Procedure Act, and the constitutional imperative that justice be administered without undue delay. 53. Accordingly, the court finds the Notice of Motion dated 13th April, 2026 to be unmerited. The same is dismissed with costs. ELC NO. 127 OF 2016 RULING 17

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Dated, signed and delivered virtually in Nairobi this 24 th day of September, 2026. O. A. Angote Judge In the presence of; Ms Motaroki for Mr. Raya for Plaintiff No appearance for Defendant Court Assistant: Tracy ELC NO. 127 OF 2016 RULING 18

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