The applicant by way of a Notice of Motion dated the 14 th April 2025 expressed to be brought Under Articles 50 (1) and 159 of the Constitution of Kenya, 2010, Sections 35, 36, 55, 106B & 107(1) of the Evidence Act, Section 4(1) & 5 of the Oaths and Statutory Declarations Act, Rules 9 and 10 of the Oaths and Statutory Declarations Rules, Sections 1, 1A, 3 & 3A of the Civil Procedure Act Cap. 21 Laws of Kenya; Rule 3 of the Judicature Act, Cap. 8 The High Court (Practice and Procedure), Vacation Rules and all the enabling provisions of Law sought the following ORDERS;-
THAT, this Application be Certified as urgent and heard on priority basis . (spent)
THAT, the Respondent/Applicant be granted leave to be heard during the Current Vacation . (spent)
THAT, this Application be admitted for hearing under the High Court Vacation rules. (spent)
THAT, the Honorable Court be pleased to stay the delivery of the judgment. scheduled for 21" April 2025 pending the Hearing and Determination of this Application.
THAT, the Honorable Court be pleased to issue orders directing the Directorate of Criminal Investigations to carry out forensic investigation and verify the authenticity of the various signatures used to purportedly commission the various attached Affidavits and Annexures filed by the Applicant in the suit herein.
THAT, the Honourable Court be pleased to find the Applicant/Respondent's supporting affidavit dated 25th March 2024, together with all other affidavits and annexures purportedly commissioned by FELIX MUTUA NDEKE irredeemably faulty, fraudulent and thereby strike them out.
THAT, the Honourable Court be pleased to issue Orders striking out the Applicant/Respondent's Originating Summons dated 21st March 2024 in its entirety and award costs to the Respondent/Applicant.
THAT, the Honourable Court be pleased to issue orders that the faulty or disputed signatures be subjected to forensic investigation.
THAT, the costs be in the suit.
The application was expressed to be premised on the following grounds;-
THAT, the several Commissioner for Oaths signatures utilised in commissioning the several Supporting Affidavits, Replying Affidavits, Affidavits of Service and annextures filed by the Applicant in the suit herein are glaringly different, questionable and, therefore unreliable.
THAT, it is trite law that faulty commissioning signatures is Affidavits supporting a claim directly undermine the Application's legitimacy in the eyes of the law.
THAT, the signatures in the Supporting Affidavits and Annexures are unique, glaringly different which indicates that they were signed by numerous persons and not by the mentioned commissioner for oaths which is contrary to law.
THAT, by the fact the affidavits in support of the Applicant's case are incurably defective for having been not commissioned and/or are products of forgeries and fraud, the whole suit becomes incompetent and a candidate for dismissal in limine for being unsupported by evidence.
THAT, this is a Court of Records hence the need to ensure and uphold the authenticity and reliability of the documents upon which its decisions are based on.
THAT, it is the natural order that a Court will yield itself to express provisions of law and issue merit-based determination of matters before it when utilizing its discretionary power.
THAT the Applicant/Respondent will not be prejudiced.
The applicant swore an affidavit on 14 th April 2025 in which he deposed at paragraphs 4 to 15 as follows:
“4. THAT, it is glaring and obvious that the Applicant herein's affidavits and Annexures should be struck out and this suit defeated.
5. THAT, the Applicant herein's affidavits and annexures do bear uniquely differing signatures, but they are all purported to have been commissioned by tone and/or the same advocate, one Mr. Felix Mutua Ndeke.
6. THAT, the signatures in the Affidavits of Service dated 13th May 2024, 18th May 2024 and 27th May 2024 are purported to have been signed by one person called Hosea Kibet Kibiwott, as the deponent, yet the same three affidavits bear three distinct signatures meaning that it is highly questionable that they were signed by the said Hosea Kibet Kibiwott. Furthermore, the stamp used by the Commissioner
for Oath is the same in all the mentioned affidavits, but the commissioner's signatures are also different. Copies of the same are Annexed Herewith and marked as "TNM 1", "TNM 2" and "TNM 3".
7. THAT, furthermore, the annexures accompanying the abovementioned Affidavits of Service dated 13th, 18th and 27th May 2024 are also in question. The annexures marked as Exhibit No. HKK 1, HKK 2 and HKK3 bear three (3) different signatures.
8. THAT, I, therefore, provide the list of the suspiciously commissioned and/or signed Affidavits and annexures and a brief description showing why they are ripe for striking out;
i. The commissioning signature in the Applicant herein's Affidavit in Support of his Originating Summons dated 25th March 2024. A copy of the said Affidavit is Annexed Herewith and marked as "TNM 4"
ii. The Supporting Affidavit and Annexure dated 8th April 2024. A Copy of the same is Annexed Herewith and Marked as "TNM 5".
iii. The signature used to commission the Applicant herein's Further Affidavit and its Annexures dated 23rd May 2024. The signer uses the three letters
which are FMN with a loop across as the signature. A Copy of the same is Annexed Herewith and Marked as "TNM 6".
iv. Replying Affidavit and Annexures dated 11th June 2024. A Copy of the same is Annexed Herewith and Marked as "TNM 7".
v. Affidavit of Service and Annexures dated 18th June 2024. A Copy of the same is Annexed Herewith and Marked as "TNM 8".
vi. Affidavit of Service and Annexures dated 5th August 2024. A Copy of the same is Annexed Herewith and Marked as "TNM 9".
The Applicant herein's Replying Affidavit dated 23rd September 2024 also bears a signature which is uniquely different the others yet purported to have been signed by the same Felix Mutua Ndeke. A Copy of the same is
Annexed Herewith and Marked as "TNM 10".
The Applicant herein's Supplementary Affidavit dated 24th October 2024 is signed using three (3) letters which are FMM as the signature. Its 3rd and 4th Annexures bear the letters FMN, which is different from the signature in the Supplementary Affidavit with the same date. They are purported to have been commissioned by the same Felix Mutua Ndeke. A Copy of the same is Annexed Herewith and Marked as "TNM 10".
ix. Affidavit of Service deponed by Edgar Busiega and Annexures dated 25th November 2024 bear three letters with a loop across them as the signature. This is starkly different from the other signatures purported to have been commissioned by the same Felix Mutua Ndeke. A Copy of the same is Annexed Herewith and Marked as "TNM 11".
Replying Affidavit and Annexures dated 2nd December 2024. A Copy of the same is Annexed Herewith and Marked as "TNM 12".
xi. The Applicant herein's Supplementary Affidavit and its Annexures dated 6th December 2024 also bear signatures that are different from others which are purported to have been commissioned by Felix Mutua Ndeke. A Copy of the same is Annexed Herewith and Marked as "TNM 13".
9. THAT, it is glaring that the Applicant's affidavit dated 11th June 2024 was signed via attaching an electronic or scanned copy of the Applicant/Respondent's signature contrary to Section 5 of the Oaths and Statutory Declarations Act.
10. THAT, the Affidavit dated 6th December 2024 fails in its propriety because no Certificate of Electronic signing was adduced. This is an act of misguiding the Honourable Court by making it believe that the said affidavit was deponed in the presence of the Commissioner. It is trite law that an electronic signature requires a Certificate confirming the authenticity of the Electronic Record which describes the manner of the production of the record or the particulars of the device and the signature of the person in charge of the relevant device or the management of the relevant activities.
11. THAT, the Honourable Court should not permit, allow and/or condone the Applicant/Respondent's adoption of shrewd unprofessional methodologies or give them a stamp of propriety.
12. THAT, the Applicant herein persistently sought the Court's indulgence concerning
his deteriorated health which raises serious questions concerning the reality of the said gravely sick person's ability to travel to and fro to appear before the commissioning advocate to swear the affidavit. It is highly improbable that the Applicant herein signed the affidavits in the presence on the said Felix Mutua Ndeke.
13. THAT, in the Interest of preventing an injustice and abuse of Court process, I officially wrote to the Directorate of Criminal Investigations-Nairobi requesting assistance in the verification of the signatures used in respect to the nature of the signatures used by the Applicant herein to commission documentation lodged in Court. My letter dated 18th December 2024. The said letter is yet to be properly responded to hence the prayer that the Directorate of Criminal Investigations be compelled to perform this task. A Copy of the same is Annexed Herewith and Marked as "TNM 14".
14. THAT, I highly doubt that Felix Mutua Ndeke, the alleged commissioner for oaths, commissioned the questionable affidavits. It is crucial that the said commissioner affirms that he indeed commissioned the said documents and provides a specimen signature which the Law Society of Kenya can corroborate.
15. THAT, the Application dated 23rd May 2024 and the life of the Applicant's suit cannot stand without any Supporting Affidavits it should therefore be struck out with costs to me.”
In opposition and response to the application Simpson Senda Kwayera swore an affidavit on 23 rd April 2024 and deposed at paragraph 2 to 35 the following:
“2. THAT I have seen, read and been explained to by my Advocates on record, Messrs. Busiega Mwanga Advocates and I have fully understood the contents of the Application dated 14th April, 2025- and in response thereto I wish to state as thus:
3. THAT indeed the Application was not certified urgent, and therefore was not admitted for hearing during the High Court vacation. No interim orders in form of staying the delivery of the Judgment were issued as such the matter is due for Judgment as scheduled. (Attached herewith and marked SSK-1 is a copy of the court order clearing declining to grant stay orders).
4. THAT as I respond further to this Application, I will pose the following two questions that would be answered by the facts that shall arise herein.
a. Why does the Applicant, Mr. Maosa want to prolong the matter
by involving the police in the civil process?
b. Is there anything that the Applicant is afraid of which the court
is not aware of?
5. THAT pleadings in this matter closed on 23rd June,2024 when I filed my Further Affidavit in response to Mr. Maosa's Replying Affidavit dated 24th April,2024.
6. THAT subsequently, directions for hearing and disposal of this matter were issued on 22nd July,2024 when both parties were ably represented. I was represented by my Advocates on record whereas Mr. Maosa was represented by Mr. Otieno.
7. THAT both parties were desirous to proceed by way of reliance on affidavit evidence and written submissions, to which the court issued directions in that regard affirming affidavit evidence and submissions.
8. THAT I am aware that both parties complied with the court's directions, and all filed submissions in support of their respective affidavit evidence, and the matter scheduled for Judgement on 21st April,2025. Mr. Maosa's submissions are dated 9th December,2024, and filed on the even date, though he refused to serve my Advocates as he has previously done on all other applications and responses he has filed in this matter. My submissions are dated 30th July, 2024.
9. THAT at no time, including in all his affidavits and submissions did Mr. Maosa raise an objection or issue about my affidavits as he now purports to, and for the record, this matter has been in court for more than 20 times; on the following occasions, 3rd April, 2024, 9th April, 2024, 9th May, 2024,29th May, 2024, 30th May, 2024, 31st May, 2024, 18th June, 2024, 19th June, 2024, 25th June, 2024, 26th June, 2024, 22nd July, 2024, 30th July, 2024, 13th August, 2024, 23rd September, 2024, 30th September, 2024, 7th October, 2024, 24th October, 2024, 6th November, 2024, 12th November, 2024, 26th November, 2024, 4th December, 2024, 9th December, 2024, 18th December, 2024 and 6th January,2025. No application was ever filed to challenge the affidavits.
10. THAT, if Mr. Maosa had a genuine concern on affidavits, then he ought to have sought for the matter to proceed by way of viva voce evidence on 22nd July, 2024. Instead, he sought to proceed by way of affidavit evidence, and therefore, this application, made just a few hours to the court Judgement is definitely an afterthought and an abuse of court
process.
11. THAT this application also seeks, through the back door, to set aside the court orders of 22nd July,2024 directing how the matter proceeds, and reopen pleadings through the back door.
12. THAT Mr. Maosa has made numerous attempts in this court to set aside the said orders of 22nd July, 2024 including moving to the Court of Appeal, but all in vain. The Court of Appeal through Appeal Number E777 of 2024 and Civil Application Number E518 of 2024 is now seized with the matter and even declined to certify the application urgent, therefore it's not open for the same issue to be raised through the back door. This court cannot sit on appeal of its own decisions.
13. THAT I confirm unequivocally that I signed all the affidavits before Commissioner of Oath Felix Mutua Ndeke, and therefore Mr. Maosa cannot allege that we forged our own signatures, this is an absurdity from Mr. Maosa and a figment of his own fertile imaginations.
14. THAT Mr. Maosa had an opportunity to question the affidavits or request for summons against us on 22nd July,2024 when parties took directions on how to proceed with the matter, but he never did so. This is now water under the bridge. As such the prayers sought in the application are an abuse of the court process.
15. THAT I am aware that the invocation of the name of Directorate of Criminal Investigations in these proceedings is meant to scare, threaten me and cow me into submission and ultimately give up on my claim for my hard-earned money amounting to Kshs.62,915,950.00.
16. THAT I am aware that Mr. Maosa single sourced for a police investigator by name Dorris Nyaundi Kemunto who on Thurday, 17th April,2025 at 3.30pm visited Commissioner of Oath Mutua's chambers and sought to know from him whether he commissioned the affidavits and whether he had lodged any complaint about his signatures. Commissioner of Oath Mutua was categorical that he had commissioned the affidavits and had not lodged any complaint anywhere about his signature. (Attached herewith and marked SSK-2 is a copy of a letter from Commissioner Mutua dated 17th April,2025).
17. THAT as such Mr. Maosa's complaint to the police about our signatures on affidavits is dead on arrival as he cannot purport that we forged our own signatures on our own documents, yet we have owned them.
18. THAT I have been advised which advise I verily believe to be true that the complaint by Mr. Maosa on variance of our signatures has no legal basis, as there is no legal requirement confining an individual to one type of signature. The mere fact that the signatures seem to vary doesn't in any way invalidate the claim before court, and doesn't mean that we never signed the affidavits as alleged by a stranger.
19. THAT our word on this matter is superior to what Mr. Maosa's maliciously intends to achieve in doctoring a report through police officer Dorris Nyaundi Kemunto. Our statement constitutes primary evidence whereas, Maosa's intended evidence through his friend police officer Kemunto, is secondary.
20. THAT I am aware that it is not in the public interest of the administration of justice to use criminal justice process in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely a civil dispute being litigated in court.
21. THAT this court sitting as a Civil Court cannot turn itself into an investigative agency. Pretrial discovery and managing of evidence must be left to parties as this is an adversarial system and by issuing orders as sought would amount to the court descending into the arena of litigants.
22. THAT it is not rocket science, Mr. Maosa is on a fishing expedition and is misusing the police to harass and intimidate me, yet the matter before court is simple and straight forward, its simply about him refunding me my hard-earned cash.
23. THAT besides being a fishing expedition, it is also a veiled threat to my life. On Friday, 11th April,2025 at around 2.00pm, as I was walking within Nairobi CBD along Tom Mboya Street, near Mercury Hotel, on my way to see my doctor, I was accosted by two unidentified men who stopped me and sought audience with me. They then threatened me with dire consequences if I fail to withdraw this matter by the 17th April, 2025.I reported this matter at Central Police Station vide OB Number
40/14/4/2025. (Attached herewith and marked SSK-3 is a copy of the OB Report in that regard).
24. THAT, further Mr. Maosa was on 10th February,2025 found guilty of gross professional misconduct by the Advocates Disciplinary Tribunal for unlawfully withholding my hard money, the subject matter of this suit. (Attached herewith and marked SSK-4 is a copy of the said Judgement).
25. THAT the matter before the Advocates Disciplinary Tribunal, is coming up for mitigation and sentencing on 5th May,2025 whereby he is likely to be struck off the roll of Advocates if Section 60 of the Advocates Act is implemented fully. (Attached herewith and marked SSK-5 is a copy of the said notice from the Tribunal).
26. THAT Mr. Maosa has not shown any remorse, or given any indication whatsoever to repay me my money, but instead has continuously acted very contemptuously and with threats in form of attempting to criminalize this civil dispute, and also threats through proxy to warn me with a promise of dire consequences if I continue to pursue this matter. My life is in danger and if anything happens to me, I will blame it on Mr. Maosa. I announce to the whole world of my security situation.
27. THAT as the record will bear out, Mr. Maosa has adopted every possible conceivable strategy to avoid and delay the expeditious disposal of this straight forward matter since its inception and has employed all possible tricks available in the books to temporize the matter as follows:
i. Filing a purported preliminary objection seeking to transfer this suit to the anti-corruption division under pretext that the subject matter is theft by agent and money laundering yet he is fully aware that the case is for refund of decretal sums he received for and on behalf of the client but failed to remit the same.
ii. Filing an application to join interested parties in the suit under pretext that the interested parties have a claim inthe matter yet the said interested parties have not shown willingness to be part of the case.
iii. Making a strange oral application on 22nd July, 2024 seeking stay of proceedings purportedly to file an appeal.
iv. Filing an application dated 6th August, 2024 seeking to stay execution and ultimately set aside court orders of 22nd July, 2024 that directed on hearing and disposal of this suit.
v. Filing an application dated 20th September, 2024 seeking recusal of the trial judge based on frivolous grounds.
vi. Making an oral application on 6th November, 2024
seeking stay of proceedings.
vii. Filing a similar application dated 6th November, 2024
seeking stay of proceedings.
viii. Always not being ready to proceed on account of flimsy
grounds.
ix. Failing to serve his applications whenever he files them.
x. Filing his applications always on the eve of a court date so as to disrupt intended court activity, such as this application filed just a few hours to court judgement.
xi. Filing applications with self-created urgency, and always misrepresenting the true and actual status of issues.
xii. Always subjecting me to defend baseless applications.
xiii. Challenging the order to place the matter under the
Rapid Results Initiative program.
xiv. Loading court with numerous applications and
amendments and counter amendments on non-issues.
xv. Always acting in a belligerent and arrogant manner.
xvi. Presenting shoddy and convoluted pleadings with numerous strange and unrelated bundles of documents running into thousands of pages to create a false impression that the issue at hand is complex instead of answering a simple and straightforward issue of when he will pay client's money.
28. THAT the numerous applications purportedly under urgency are a forum shopping venture intended to confuse unsuspecting duty court Judges who may not know the history of this matter, to issue a faraway date not aware of the fact that this is an RRI case.
29. THAT Mr. Maosa's strategies in purporting to file numerous applications under urgency is pretentious as in actual fact he doesn't wish that they be handled urgently. The intention is to strain the court, strain me and my counsel, strain court resources and deplete me financially. This is a true reflection of sharp practice used in the jungle.
30. THAT further Mr. Maosa's intention is to create an impression of conflict of judicial officers in giving directions. He clearly thrives in anarchy and this is a notable trait that I have noted in him, and even in all my affidavits, I have not hesitated to demonstrate that Mr. Maosa thrives in delay tactics, intimidation and blackmail.
31. THAT the trial court has on merit heard all his hopeless applications and dismissed them accordingly as thus:
i. On the preliminary objection, the court observed that the issue before court was within its jurisdiction more so that the matter was simply for recovery of client money. (Attached herewith and marked SSK-6 is a copy of the said ruling dated 4th July,2024)
ii. On joinder of parties. Application dismissed on 22nd July,2024 for lack of merit. (Attached herewith and marked SSK-7 is a copy of the ruling)
iii. On stay of proceedings, the court dismissed the same on 26th November,2024. (Attached herewith is a copy of the said ruling marked SSK-8).
32. THAT the irony of Mr. Maosa's application is that he challenges my affidavits without any justifiable cause yet his own affidavits were in fact not commissioned by a licensed Commissioner of Oath as confirmed by the Law Society of Kenya. His Affidavit dated 24th April,2024 in response to the main OS was commissioned by a quack lawyer known as JOHN KIONI KIBRA. (Attached herewith and marked SSK-9 is a copy of Maosa's Supporting Affidavit commissioned by quack lawyer, Kibra, and also find attached and marked SSK-10 a letter from Law Society of Kenya dated 29th May,2024 confirming that Kibra is a quack).
33. THAT however, I did not take the path to question the affidavits as I am interested in substantive justice rather than pursue procedural technicalities.
34. THAT the report made at police by Maosa is false and malicious since he has misled the police that only Kshs.65 million was paid of which he allegedly paid me Kshs.42Million, yet I have sued him. That is outrightly misleading as the facts are clear that Mr. Maosa received Kshs.85 million of which he refused to pay me Kshs.62,915,950.00. (Attached herewith and marked SSK-11 is a copy of his statement at police dated 14th April,2025).
35. THAT in sum, I vehemently oppose this Application as it is an abuse of Court process and should be dismissed with costs.
This court has reproduced the depositions by Mr. Maosa and Mr. Kwayera just to demonstrate the degree of animosity in this matter that is now threatening to blow up in the face of this court. On the one hand the applicant has raised concerns about suspected forgery of signatures and improper filing of annextures before this court while on the other hand the respondent believes that the applicant is simply engaging in dilatory tactics calculated at ensuring that judgement in this matter is delayed infinitely.
This court has noted that the applicant at paragraph 13 of his affidavit states that he had written to Directorate of Criminal Investigations asking them to investigate the very same matters that he now seeks to have this court issue an order directing the Director of Criminal Investigations to investigate. It is clear to this court that the applicant is inviting the court into an arena that it should not go into. Article 245 (4) and (5) of the Constitution provides :
‘’(4) The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—
(a) the investigation of any particular offence or offences;
(b) the enforcement of the law against any particular person or persons; or
(c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.
(5) Any direction given to the Inspector-General by the Cabinet secretary responsible for police services under clause (4), or any direction given to the Inspector-General by the Director of Public Prosecutions under Article 157(4), shall be in writing. (emphasis mine).
The constitutional provision leaves no doubt as to how the Inspector General of Police is expected to discharge his investigative functions. The court cannot direct the Inspector General of Police to undertake investigations in the manner suggested by the applicant without violating the expressed provisions of this Article. The applicant having filed his complaint with the Director of Criminal Investigations the option open to him is to follow up the matter with the Director of Criminal Investigations and in the event that he fails to succeed in that regard then Article 245(5) allows him to seek the intervention of the Director of Public Prosecutions to have the matter investigated.
Further, the court can only compel the Inspector General of Police or the Director of Criminal Investigations to investigate through an order of mandamus where the applicant demonstrates that the Inspector General has failed, refused or neglected to perform his duty nowhere in the affidavit of the applicant does he allege the Inspector General of Police has failed to discharge his function thus justify the invocation of this court’s power to compel the Director of Criminal Investigations or the Inspector General to act.
The requirements for an order of mandamus to issue were explained by Mativo J. in Republic v Principal Secretary, Ministry of Internal Security & another ex parte Schon Noorani & Another [2018] eKLR as follows:
“Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. v Canada (Attorney General), and, was also discussed in Dragan v Canada (Minister of Citizenship and Immigration). The eight factors that must be present for the writ to issue are:-
(i)There must be a public legal duty to act;
(ii) The duty must be owed to the Applicants;
(iii)There must be a clear right to the performance of that duty, meaning that:
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:
i. A prior demand for performance;
ii. A reasonable time to comply with the demand, unless there was outright refusal; and
iii. An express refusal, or an implied refusal through unreasonable delay;
iv. No other adequate remedy is available to the Applicants;
v. The Order sought must be of some practical value or effect;
vi. There is no equitable bar to the relief sought;
vii. On a balance of convenience, mandamus should lie
The orders sought at number 5 on the face of the motion is basically an order for mandamus. The applicant has not demonstrated why this court should resort into issuing such an order without any evidence of inaction by the Director of Criminal Investigations thus the applicant’s prayer to this court is premature and or misconceived.
In regard to prayer 6 and 7, this court finds that without any forensic examiners report the court cannot reach a finding that the affidavits and annextures challenged by the applicant are irredeemably faulty and or fraudulent.
This court has no capacity to determine by a mere glance that the documents are forged. To determine the question of forgery a court requires the input of a forensic document examiner. The applicant has not presented any such report and as such he is urging the court to act on suspicion without the benefit of forensic evidence. This court respectively declines that invitation as it would amount to engaging in a speculative adventure not supported by law or evidence.
In Kidero & another v Independent Electoral & Bounderies Commission & 4 others (Election Petition E001 of 2022) [2022] KEHC 15799 (KLR) (29 November 2022) (Ruling) the learned Hon. Lady Justice Aburili held:
“This court finds that unless a witness denies that the signature is theirs, whether on affidavits or any other documents, or unless the authenticity of those signatures are impugned by a handwriting expert, this court
[...truncated]
THAT, this Application be Certified as urgent and heard on priority basis . (spent)
THAT, the Respondent/Applicant be granted leave to be heard during the Current Vacation . (spent)
THAT, this Application be admitted for hearing under the High Court Vacation rules. (spent)
THAT, the Honorable Court be pleased to stay the delivery of the judgment. scheduled for 21" April 2025 pending the Hearing and Determination of this Application.
THAT, the Honorable Court be pleased to issue orders directing the Directorate of Criminal Investigations to carry out forensic investigation and verify the authenticity of the various signatures used to purportedly commission the various attached Affidavits and Annexures filed by the Applicant in the suit herein.
THAT, the Honourable Court be pleased to find the Applicant/Respondent's supporting affidavit dated 25th March 2024, together with all other affidavits and annexures purportedly commissioned by FELIX MUTUA NDEKE irredeemably faulty, fraudulent and thereby strike them out.
THAT, the Honourable Court be pleased to issue Orders striking out the Applicant/Respondent's Originating Summons dated 21st March 2024 in its entirety and award costs to the Respondent/Applicant.
THAT, the Honourable Court be pleased to issue orders that the faulty or disputed signatures be subjected to forensic investigation.
THAT, the costs be in the suit.
The application was expressed to be premised on the following grounds;-
THAT, the several Commissioner for Oaths signatures utilised in commissioning the several Supporting Affidavits, Replying Affidavits, Affidavits of Service and annextures filed by the Applicant in the suit herein are glaringly different, questionable and, therefore unreliable.
THAT, it is trite law that faulty commissioning signatures is Affidavits supporting a claim directly undermine the Application's legitimacy in the eyes of the law.
THAT, the signatures in the Supporting Affidavits and Annexures are unique, glaringly different which indicates that they were signed by numerous persons and not by the mentioned commissioner for oaths which is contrary to law.
THAT, by the fact the affidavits in support of the Applicant's case are incurably defective for having been not commissioned and/or are products of forgeries and fraud, the whole suit becomes incompetent and a candidate for dismissal in limine for being unsupported by evidence.
THAT, this is a Court of Records hence the need to ensure and uphold the authenticity and reliability of the documents upon which its decisions are based on.
THAT, it is the natural order that a Court will yield itself to express provisions of law and issue merit-based determination of matters before it when utilizing its discretionary power.
THAT the Applicant/Respondent will not be prejudiced.
The applicant swore an affidavit on 14 th April 2025 in which he deposed at paragraphs 4 to 15 as follows:
“4. THAT, it is glaring and obvious that the Applicant herein's affidavits and Annexures should be struck out and this suit defeated.
5. THAT, the Applicant herein's affidavits and annexures do bear uniquely differing signatures, but they are all purported to have been commissioned by tone and/or the same advocate, one Mr. Felix Mutua Ndeke.
6. THAT, the signatures in the Affidavits of Service dated 13th May 2024, 18th May 2024 and 27th May 2024 are purported to have been signed by one person called Hosea Kibet Kibiwott, as the deponent, yet the same three affidavits bear three distinct signatures meaning that it is highly questionable that they were signed by the said Hosea Kibet Kibiwott. Furthermore, the stamp used by the Commissioner
for Oath is the same in all the mentioned affidavits, but the commissioner's signatures are also different. Copies of the same are Annexed Herewith and marked as "TNM 1", "TNM 2" and "TNM 3".
7. THAT, furthermore, the annexures accompanying the abovementioned Affidavits of Service dated 13th, 18th and 27th May 2024 are also in question. The annexures marked as Exhibit No. HKK 1, HKK 2 and HKK3 bear three (3) different signatures.
8. THAT, I, therefore, provide the list of the suspiciously commissioned and/or signed Affidavits and annexures and a brief description showing why they are ripe for striking out;
i. The commissioning signature in the Applicant herein's Affidavit in Support of his Originating Summons dated 25th March 2024. A copy of the said Affidavit is Annexed Herewith and marked as "TNM 4"
ii. The Supporting Affidavit and Annexure dated 8th April 2024. A Copy of the same is Annexed Herewith and Marked as "TNM 5".
iii. The signature used to commission the Applicant herein's Further Affidavit and its Annexures dated 23rd May 2024. The signer uses the three letters
which are FMN with a loop across as the signature. A Copy of the same is Annexed Herewith and Marked as "TNM 6".
iv. Replying Affidavit and Annexures dated 11th June 2024. A Copy of the same is Annexed Herewith and Marked as "TNM 7".
v. Affidavit of Service and Annexures dated 18th June 2024. A Copy of the same is Annexed Herewith and Marked as "TNM 8".
vi. Affidavit of Service and Annexures dated 5th August 2024. A Copy of the same is Annexed Herewith and Marked as "TNM 9".
The Applicant herein's Replying Affidavit dated 23rd September 2024 also bears a signature which is uniquely different the others yet purported to have been signed by the same Felix Mutua Ndeke. A Copy of the same is
Annexed Herewith and Marked as "TNM 10".
The Applicant herein's Supplementary Affidavit dated 24th October 2024 is signed using three (3) letters which are FMM as the signature. Its 3rd and 4th Annexures bear the letters FMN, which is different from the signature in the Supplementary Affidavit with the same date. They are purported to have been commissioned by the same Felix Mutua Ndeke. A Copy of the same is Annexed Herewith and Marked as "TNM 10".
ix. Affidavit of Service deponed by Edgar Busiega and Annexures dated 25th November 2024 bear three letters with a loop across them as the signature. This is starkly different from the other signatures purported to have been commissioned by the same Felix Mutua Ndeke. A Copy of the same is Annexed Herewith and Marked as "TNM 11".
Replying Affidavit and Annexures dated 2nd December 2024. A Copy of the same is Annexed Herewith and Marked as "TNM 12".
xi. The Applicant herein's Supplementary Affidavit and its Annexures dated 6th December 2024 also bear signatures that are different from others which are purported to have been commissioned by Felix Mutua Ndeke. A Copy of the same is Annexed Herewith and Marked as "TNM 13".
9. THAT, it is glaring that the Applicant's affidavit dated 11th June 2024 was signed via attaching an electronic or scanned copy of the Applicant/Respondent's signature contrary to Section 5 of the Oaths and Statutory Declarations Act.
10. THAT, the Affidavit dated 6th December 2024 fails in its propriety because no Certificate of Electronic signing was adduced. This is an act of misguiding the Honourable Court by making it believe that the said affidavit was deponed in the presence of the Commissioner. It is trite law that an electronic signature requires a Certificate confirming the authenticity of the Electronic Record which describes the manner of the production of the record or the particulars of the device and the signature of the person in charge of the relevant device or the management of the relevant activities.
11. THAT, the Honourable Court should not permit, allow and/or condone the Applicant/Respondent's adoption of shrewd unprofessional methodologies or give them a stamp of propriety.
12. THAT, the Applicant herein persistently sought the Court's indulgence concerning
his deteriorated health which raises serious questions concerning the reality of the said gravely sick person's ability to travel to and fro to appear before the commissioning advocate to swear the affidavit. It is highly improbable that the Applicant herein signed the affidavits in the presence on the said Felix Mutua Ndeke.
13. THAT, in the Interest of preventing an injustice and abuse of Court process, I officially wrote to the Directorate of Criminal Investigations-Nairobi requesting assistance in the verification of the signatures used in respect to the nature of the signatures used by the Applicant herein to commission documentation lodged in Court. My letter dated 18th December 2024. The said letter is yet to be properly responded to hence the prayer that the Directorate of Criminal Investigations be compelled to perform this task. A Copy of the same is Annexed Herewith and Marked as "TNM 14".
14. THAT, I highly doubt that Felix Mutua Ndeke, the alleged commissioner for oaths, commissioned the questionable affidavits. It is crucial that the said commissioner affirms that he indeed commissioned the said documents and provides a specimen signature which the Law Society of Kenya can corroborate.
15. THAT, the Application dated 23rd May 2024 and the life of the Applicant's suit cannot stand without any Supporting Affidavits it should therefore be struck out with costs to me.”
In opposition and response to the application Simpson Senda Kwayera swore an affidavit on 23 rd April 2024 and deposed at paragraph 2 to 35 the following:
“2. THAT I have seen, read and been explained to by my Advocates on record, Messrs. Busiega Mwanga Advocates and I have fully understood the contents of the Application dated 14th April, 2025- and in response thereto I wish to state as thus:
3. THAT indeed the Application was not certified urgent, and therefore was not admitted for hearing during the High Court vacation. No interim orders in form of staying the delivery of the Judgment were issued as such the matter is due for Judgment as scheduled. (Attached herewith and marked SSK-1 is a copy of the court order clearing declining to grant stay orders).
4. THAT as I respond further to this Application, I will pose the following two questions that would be answered by the facts that shall arise herein.
a. Why does the Applicant, Mr. Maosa want to prolong the matter
by involving the police in the civil process?
b. Is there anything that the Applicant is afraid of which the court
is not aware of?
5. THAT pleadings in this matter closed on 23rd June,2024 when I filed my Further Affidavit in response to Mr. Maosa's Replying Affidavit dated 24th April,2024.
6. THAT subsequently, directions for hearing and disposal of this matter were issued on 22nd July,2024 when both parties were ably represented. I was represented by my Advocates on record whereas Mr. Maosa was represented by Mr. Otieno.
7. THAT both parties were desirous to proceed by way of reliance on affidavit evidence and written submissions, to which the court issued directions in that regard affirming affidavit evidence and submissions.
8. THAT I am aware that both parties complied with the court's directions, and all filed submissions in support of their respective affidavit evidence, and the matter scheduled for Judgement on 21st April,2025. Mr. Maosa's submissions are dated 9th December,2024, and filed on the even date, though he refused to serve my Advocates as he has previously done on all other applications and responses he has filed in this matter. My submissions are dated 30th July, 2024.
9. THAT at no time, including in all his affidavits and submissions did Mr. Maosa raise an objection or issue about my affidavits as he now purports to, and for the record, this matter has been in court for more than 20 times; on the following occasions, 3rd April, 2024, 9th April, 2024, 9th May, 2024,29th May, 2024, 30th May, 2024, 31st May, 2024, 18th June, 2024, 19th June, 2024, 25th June, 2024, 26th June, 2024, 22nd July, 2024, 30th July, 2024, 13th August, 2024, 23rd September, 2024, 30th September, 2024, 7th October, 2024, 24th October, 2024, 6th November, 2024, 12th November, 2024, 26th November, 2024, 4th December, 2024, 9th December, 2024, 18th December, 2024 and 6th January,2025. No application was ever filed to challenge the affidavits.
10. THAT, if Mr. Maosa had a genuine concern on affidavits, then he ought to have sought for the matter to proceed by way of viva voce evidence on 22nd July, 2024. Instead, he sought to proceed by way of affidavit evidence, and therefore, this application, made just a few hours to the court Judgement is definitely an afterthought and an abuse of court
process.
11. THAT this application also seeks, through the back door, to set aside the court orders of 22nd July,2024 directing how the matter proceeds, and reopen pleadings through the back door.
12. THAT Mr. Maosa has made numerous attempts in this court to set aside the said orders of 22nd July, 2024 including moving to the Court of Appeal, but all in vain. The Court of Appeal through Appeal Number E777 of 2024 and Civil Application Number E518 of 2024 is now seized with the matter and even declined to certify the application urgent, therefore it's not open for the same issue to be raised through the back door. This court cannot sit on appeal of its own decisions.
13. THAT I confirm unequivocally that I signed all the affidavits before Commissioner of Oath Felix Mutua Ndeke, and therefore Mr. Maosa cannot allege that we forged our own signatures, this is an absurdity from Mr. Maosa and a figment of his own fertile imaginations.
14. THAT Mr. Maosa had an opportunity to question the affidavits or request for summons against us on 22nd July,2024 when parties took directions on how to proceed with the matter, but he never did so. This is now water under the bridge. As such the prayers sought in the application are an abuse of the court process.
15. THAT I am aware that the invocation of the name of Directorate of Criminal Investigations in these proceedings is meant to scare, threaten me and cow me into submission and ultimately give up on my claim for my hard-earned money amounting to Kshs.62,915,950.00.
16. THAT I am aware that Mr. Maosa single sourced for a police investigator by name Dorris Nyaundi Kemunto who on Thurday, 17th April,2025 at 3.30pm visited Commissioner of Oath Mutua's chambers and sought to know from him whether he commissioned the affidavits and whether he had lodged any complaint about his signatures. Commissioner of Oath Mutua was categorical that he had commissioned the affidavits and had not lodged any complaint anywhere about his signature. (Attached herewith and marked SSK-2 is a copy of a letter from Commissioner Mutua dated 17th April,2025).
17. THAT as such Mr. Maosa's complaint to the police about our signatures on affidavits is dead on arrival as he cannot purport that we forged our own signatures on our own documents, yet we have owned them.
18. THAT I have been advised which advise I verily believe to be true that the complaint by Mr. Maosa on variance of our signatures has no legal basis, as there is no legal requirement confining an individual to one type of signature. The mere fact that the signatures seem to vary doesn't in any way invalidate the claim before court, and doesn't mean that we never signed the affidavits as alleged by a stranger.
19. THAT our word on this matter is superior to what Mr. Maosa's maliciously intends to achieve in doctoring a report through police officer Dorris Nyaundi Kemunto. Our statement constitutes primary evidence whereas, Maosa's intended evidence through his friend police officer Kemunto, is secondary.
20. THAT I am aware that it is not in the public interest of the administration of justice to use criminal justice process in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely a civil dispute being litigated in court.
21. THAT this court sitting as a Civil Court cannot turn itself into an investigative agency. Pretrial discovery and managing of evidence must be left to parties as this is an adversarial system and by issuing orders as sought would amount to the court descending into the arena of litigants.
22. THAT it is not rocket science, Mr. Maosa is on a fishing expedition and is misusing the police to harass and intimidate me, yet the matter before court is simple and straight forward, its simply about him refunding me my hard-earned cash.
23. THAT besides being a fishing expedition, it is also a veiled threat to my life. On Friday, 11th April,2025 at around 2.00pm, as I was walking within Nairobi CBD along Tom Mboya Street, near Mercury Hotel, on my way to see my doctor, I was accosted by two unidentified men who stopped me and sought audience with me. They then threatened me with dire consequences if I fail to withdraw this matter by the 17th April, 2025.I reported this matter at Central Police Station vide OB Number
40/14/4/2025. (Attached herewith and marked SSK-3 is a copy of the OB Report in that regard).
24. THAT, further Mr. Maosa was on 10th February,2025 found guilty of gross professional misconduct by the Advocates Disciplinary Tribunal for unlawfully withholding my hard money, the subject matter of this suit. (Attached herewith and marked SSK-4 is a copy of the said Judgement).
25. THAT the matter before the Advocates Disciplinary Tribunal, is coming up for mitigation and sentencing on 5th May,2025 whereby he is likely to be struck off the roll of Advocates if Section 60 of the Advocates Act is implemented fully. (Attached herewith and marked SSK-5 is a copy of the said notice from the Tribunal).
26. THAT Mr. Maosa has not shown any remorse, or given any indication whatsoever to repay me my money, but instead has continuously acted very contemptuously and with threats in form of attempting to criminalize this civil dispute, and also threats through proxy to warn me with a promise of dire consequences if I continue to pursue this matter. My life is in danger and if anything happens to me, I will blame it on Mr. Maosa. I announce to the whole world of my security situation.
27. THAT as the record will bear out, Mr. Maosa has adopted every possible conceivable strategy to avoid and delay the expeditious disposal of this straight forward matter since its inception and has employed all possible tricks available in the books to temporize the matter as follows:
i. Filing a purported preliminary objection seeking to transfer this suit to the anti-corruption division under pretext that the subject matter is theft by agent and money laundering yet he is fully aware that the case is for refund of decretal sums he received for and on behalf of the client but failed to remit the same.
ii. Filing an application to join interested parties in the suit under pretext that the interested parties have a claim inthe matter yet the said interested parties have not shown willingness to be part of the case.
iii. Making a strange oral application on 22nd July, 2024 seeking stay of proceedings purportedly to file an appeal.
iv. Filing an application dated 6th August, 2024 seeking to stay execution and ultimately set aside court orders of 22nd July, 2024 that directed on hearing and disposal of this suit.
v. Filing an application dated 20th September, 2024 seeking recusal of the trial judge based on frivolous grounds.
vi. Making an oral application on 6th November, 2024
seeking stay of proceedings.
vii. Filing a similar application dated 6th November, 2024
seeking stay of proceedings.
viii. Always not being ready to proceed on account of flimsy
grounds.
ix. Failing to serve his applications whenever he files them.
x. Filing his applications always on the eve of a court date so as to disrupt intended court activity, such as this application filed just a few hours to court judgement.
xi. Filing applications with self-created urgency, and always misrepresenting the true and actual status of issues.
xii. Always subjecting me to defend baseless applications.
xiii. Challenging the order to place the matter under the
Rapid Results Initiative program.
xiv. Loading court with numerous applications and
amendments and counter amendments on non-issues.
xv. Always acting in a belligerent and arrogant manner.
xvi. Presenting shoddy and convoluted pleadings with numerous strange and unrelated bundles of documents running into thousands of pages to create a false impression that the issue at hand is complex instead of answering a simple and straightforward issue of when he will pay client's money.
28. THAT the numerous applications purportedly under urgency are a forum shopping venture intended to confuse unsuspecting duty court Judges who may not know the history of this matter, to issue a faraway date not aware of the fact that this is an RRI case.
29. THAT Mr. Maosa's strategies in purporting to file numerous applications under urgency is pretentious as in actual fact he doesn't wish that they be handled urgently. The intention is to strain the court, strain me and my counsel, strain court resources and deplete me financially. This is a true reflection of sharp practice used in the jungle.
30. THAT further Mr. Maosa's intention is to create an impression of conflict of judicial officers in giving directions. He clearly thrives in anarchy and this is a notable trait that I have noted in him, and even in all my affidavits, I have not hesitated to demonstrate that Mr. Maosa thrives in delay tactics, intimidation and blackmail.
31. THAT the trial court has on merit heard all his hopeless applications and dismissed them accordingly as thus:
i. On the preliminary objection, the court observed that the issue before court was within its jurisdiction more so that the matter was simply for recovery of client money. (Attached herewith and marked SSK-6 is a copy of the said ruling dated 4th July,2024)
ii. On joinder of parties. Application dismissed on 22nd July,2024 for lack of merit. (Attached herewith and marked SSK-7 is a copy of the ruling)
iii. On stay of proceedings, the court dismissed the same on 26th November,2024. (Attached herewith is a copy of the said ruling marked SSK-8).
32. THAT the irony of Mr. Maosa's application is that he challenges my affidavits without any justifiable cause yet his own affidavits were in fact not commissioned by a licensed Commissioner of Oath as confirmed by the Law Society of Kenya. His Affidavit dated 24th April,2024 in response to the main OS was commissioned by a quack lawyer known as JOHN KIONI KIBRA. (Attached herewith and marked SSK-9 is a copy of Maosa's Supporting Affidavit commissioned by quack lawyer, Kibra, and also find attached and marked SSK-10 a letter from Law Society of Kenya dated 29th May,2024 confirming that Kibra is a quack).
33. THAT however, I did not take the path to question the affidavits as I am interested in substantive justice rather than pursue procedural technicalities.
34. THAT the report made at police by Maosa is false and malicious since he has misled the police that only Kshs.65 million was paid of which he allegedly paid me Kshs.42Million, yet I have sued him. That is outrightly misleading as the facts are clear that Mr. Maosa received Kshs.85 million of which he refused to pay me Kshs.62,915,950.00. (Attached herewith and marked SSK-11 is a copy of his statement at police dated 14th April,2025).
35. THAT in sum, I vehemently oppose this Application as it is an abuse of Court process and should be dismissed with costs.
This court has reproduced the depositions by Mr. Maosa and Mr. Kwayera just to demonstrate the degree of animosity in this matter that is now threatening to blow up in the face of this court. On the one hand the applicant has raised concerns about suspected forgery of signatures and improper filing of annextures before this court while on the other hand the respondent believes that the applicant is simply engaging in dilatory tactics calculated at ensuring that judgement in this matter is delayed infinitely.
This court has noted that the applicant at paragraph 13 of his affidavit states that he had written to Directorate of Criminal Investigations asking them to investigate the very same matters that he now seeks to have this court issue an order directing the Director of Criminal Investigations to investigate. It is clear to this court that the applicant is inviting the court into an arena that it should not go into. Article 245 (4) and (5) of the Constitution provides :
‘’(4) The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—
(a) the investigation of any particular offence or offences;
(b) the enforcement of the law against any particular person or persons; or
(c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.
(5) Any direction given to the Inspector-General by the Cabinet secretary responsible for police services under clause (4), or any direction given to the Inspector-General by the Director of Public Prosecutions under Article 157(4), shall be in writing. (emphasis mine).
The constitutional provision leaves no doubt as to how the Inspector General of Police is expected to discharge his investigative functions. The court cannot direct the Inspector General of Police to undertake investigations in the manner suggested by the applicant without violating the expressed provisions of this Article. The applicant having filed his complaint with the Director of Criminal Investigations the option open to him is to follow up the matter with the Director of Criminal Investigations and in the event that he fails to succeed in that regard then Article 245(5) allows him to seek the intervention of the Director of Public Prosecutions to have the matter investigated.
Further, the court can only compel the Inspector General of Police or the Director of Criminal Investigations to investigate through an order of mandamus where the applicant demonstrates that the Inspector General has failed, refused or neglected to perform his duty nowhere in the affidavit of the applicant does he allege the Inspector General of Police has failed to discharge his function thus justify the invocation of this court’s power to compel the Director of Criminal Investigations or the Inspector General to act.
The requirements for an order of mandamus to issue were explained by Mativo J. in Republic v Principal Secretary, Ministry of Internal Security & another ex parte Schon Noorani & Another [2018] eKLR as follows:
“Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. v Canada (Attorney General), and, was also discussed in Dragan v Canada (Minister of Citizenship and Immigration). The eight factors that must be present for the writ to issue are:-
(i)There must be a public legal duty to act;
(ii) The duty must be owed to the Applicants;
(iii)There must be a clear right to the performance of that duty, meaning that:
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:
i. A prior demand for performance;
ii. A reasonable time to comply with the demand, unless there was outright refusal; and
iii. An express refusal, or an implied refusal through unreasonable delay;
iv. No other adequate remedy is available to the Applicants;
v. The Order sought must be of some practical value or effect;
vi. There is no equitable bar to the relief sought;
vii. On a balance of convenience, mandamus should lie
The orders sought at number 5 on the face of the motion is basically an order for mandamus. The applicant has not demonstrated why this court should resort into issuing such an order without any evidence of inaction by the Director of Criminal Investigations thus the applicant’s prayer to this court is premature and or misconceived.
In regard to prayer 6 and 7, this court finds that without any forensic examiners report the court cannot reach a finding that the affidavits and annextures challenged by the applicant are irredeemably faulty and or fraudulent.
This court has no capacity to determine by a mere glance that the documents are forged. To determine the question of forgery a court requires the input of a forensic document examiner. The applicant has not presented any such report and as such he is urging the court to act on suspicion without the benefit of forensic evidence. This court respectively declines that invitation as it would amount to engaging in a speculative adventure not supported by law or evidence.
In Kidero & another v Independent Electoral & Bounderies Commission & 4 others (Election Petition E001 of 2022) [2022] KEHC 15799 (KLR) (29 November 2022) (Ruling) the learned Hon. Lady Justice Aburili held:
“This court finds that unless a witness denies that the signature is theirs, whether on affidavits or any other documents, or unless the authenticity of those signatures are impugned by a handwriting expert, this court
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