Mutabari (Suing for and on behalf of Humility Ministries) & 10 others v Ole Koruta
The bottom line
#The Court of Appeal refused to halt a land judgment because the applicants could not show their appeal had a realistic chance of success.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate may swear a supporting affidavit on behalf of clients
The Preliminary Objection was dismissed; an advocate may depone where he has personal knowledge of the facts and can prove them, per Pattni v Ali.
Relying on Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali, the court noted there is no express prohibition against an advocate stating facts of his own knowledge in a client's affidavit, and Order 19 Rule 3(1) permits statements of information and belief in interlocutory proceedings with sources disclosed. Counsel asserted personal knowledge, so the objection failed.
Whether the intended appeal was arguable under Rule 5(2)(b)
The intended appeal was not arguable; the applicants' claim rested on letters of allotment while the respondent held a Certificate of Lease prima facie proof of proprietorship under Section 26 of the Land Registration Act.
The court applied the settled twin principles from Trust Bank v Investech and the arguability test in Kang'ethe Kinyanjui v Ketter. Weighing the competing claims of title, it found no indication the respondent acquired the Certificate of Lease illegally, and declined to make definitive findings lest it embarrass the bench hearing the main appeal.
Whether the appeal would be rendered nugatory absent stay
Not determined, as both limbs must be established and the arguability limb had failed.
The court reiterated that an applicant must demonstrate both limbs to the court's satisfaction; having failed on arguability, there was no need to consider nugatory-ness.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs; failure on one disposes of the application.
- Nothing prohibits an advocate from swearing an affidavit on behalf of clients where the advocate can prove the facts deponed, especially where clients are not readily available.
Court orders
#- 1.Preliminary Objection dismissed
- 2.Notice of motion dated 1st July, 2020 dismissed with costs to the respondent
- On appeal from
- Environment and Land Court of Kenya at Kajiado
- E.L.C. No. 636 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutabari (Suing for and on behalf of Humility Ministries) & 10 others v Ole Koruta", Case Analysis (2022). Civil Application 194 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/978/eng@2022-08-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.