1.The Application for determination is dated 30th June 2023 and is presented Under Rule 49 of the Probate and Administration Rules and seeks the following orders-a)Spentb)An order do issue directed to the Directorate of Criminal Investigation headquarters to subject the will of George Mbugua Ngari the deceased herein to forensic document examination prepare a report and file it in this Court.
2.The Application is supported by the Affidavit of Veronicah Nyawira Mbugua sworn on the same date.
3.The Application is opposed by the Respondent, Sammy George Ngari Mbugua who has sworn a replying affidavit on 23rd August 2023.
4.The Application is stated to be grounded on the fact that the Applicants have challenged the validity of the Will executed by the deceased. Prior to filing this Application, the Applicants filed the Application dated 17th February 2023. It is alleged that when the Applicants approached the DCI to investigate the will, the DCI asked that the Court issue an order requiring the DCI to avail the report, ostensibly because the issue is before this Court.
5.The Grant of Probate was issued herein on 17th December 1999, subsequently the Certificate of Confirmation of Grant with Will was issued on 28th July 2000. The estate has since been transmitted to the beneficiaries as per the Certificate of Confirmation of Grant.
6.I have seen the undated witness statement by Sammy George Ngari filed herein and note that the Applicants herein are Defendants in MCELC No. 021/2023 where the Respondent is seeking Eviction orders against the Applicants.
7.The Applicants herein wish to set off on an expedition to challenge the will and have invited the Court to join them on this Voyage by directing the DCI to subject the will to a forensic examination. Unfortunately, the Court must decline that invitation.
8.In arriving at my decision after having considered the pleadings, rival submissions and applicable law, I am guided by the decision in Re Estate of Alice Mumbua Mutua (Deceased)  KLR (Musyoka J) said as follows on the same:
9.I note that the DCI is not a party in this application, it is not clear why Sammy George Nagri Mbugua is the Respondent. This court cannot make orders affecting the DCI when they are not enjoined herein. On that ground I would find the Application incompetent.
10.The Applicants wish for the DCI to investigate what is essentially a criminal offence, this court is not vested with powers to direct the DCI to carry out their functions. In any event this would amount to the Court assisting one party to build its case.
11.I observe the proper arena for the Applicants to challenge the title of the Respondent would be in the ELC matter and not here, or at least definitely not in the manner they have approached the Court.
12.For the reasons above, I strike out the Application dated 30th June 2023 with costs to the Respondent assessed at Kshs 20,000 payable within 30 days