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ELCStruck OutCivil Suit No. 166 of 2015· [2015] KEELC 248 (KLR)

Yatich Chepkonga & 13 other Members of Kamgoin Village v Chairman, Secretary,Treasurer, Board of Trustees, Baringo Techinical College [2015] KEELC 248 (KLR)

Environment and Land Court of Kenya
3 July 2015
AOAntony Ombwayo
408 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land suit because the man who swore its supporting affidavits had died before the case was even filed.

What this practically means

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Executive summary

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The plaintiffs, 14 members of Kamgoin Village in Baringo County, sued through Yatich Chepkonga claiming to be the rightful and registered owners of various parcels of land known as Baringo Kapropita/107, 223, 109, 170, 229, 111, 110, 109, 167, 168, 175, 176, 177, 221 and 222. Chepkonga swore the verifying affidavit to the plaint and a supporting affidavit in support of a Notice of Motion dated 15.6.2015. The defendant, through Mrs. Chebii & Company Advocates, moved to strike out the plaint as incompetent and an abuse of court process, asserting that some of the plaintiffs were dead and that Chepkonga himself died before the suit was filed. When the matter came up on 30.6.2015 the court directed the plaintiffs to avail themselves for verification on 3.7.2015. On that date the court personally called the file and directed the plaintiffs to identify themselves, and discovered that most of the plaintiffs, including Chepkonga, were dead. The court ascertained that Chepkonga died before the filing of the suit and could not therefore bring the action on his own behalf or with the authority of the other plaintiffs. It held that the verifying affidavit and supporting affidavit, being sworn by a deceased person, were nullities, and that the whole suit was a nullity bordering on fraud. Ombwayo J declared the verifying affidavit a nullity, struck out the suit with costs to the defendant, and delivered the ruling at Eldoret on 3 July 2015.

Key legal issues

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01

Validity of affidavits sworn by a deceased person

Holding

An affidavit sworn by a person who died before the filing of the suit is a nullity, and the suit anchored on it is a nullity bordering on fraud

Reasoning

The court ascertained that Yatich Chepkonga, the deponent of the verifying affidavit to the plaint and the supporting affidavit to the Notice of Motion dated 15.6.2015, had died before the suit was filed. A deceased person cannot swear an affidavit or bring an action on his own behalf or with the authority of other plaintiffs, rendering both affidavits and the entire suit incompetent and an abuse of process.

p. 2
02

Consequence for the suit as a whole

Holding

The whole suit is struck out as a nullity bordering on fraud

Reasoning

Since the verifying affidavit was a nullity and the named plaintiff/deponent was dead, the suit could not stand. The court declared the verifying affidavit a nullity and struck out the entire suit with costs to the defendant, rather than permitting substitution or amendment.

p. 2

Legal principles established

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  • A verifying affidavit or supporting affidavit sworn by a deceased person is a nullity, and a suit founded on such affidavits, sworn by a plaintiff who died before filing, is itself a nullity and may be struck out

Court orders

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  1. 1.The Verifying affidavit to the plaint is declared a nullity
  2. 2.The suit is struck out
  3. 3.Costs of the suit are awarded to the defendant
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes in Baringo County

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Yatich Chepkonga & 13 other Members of Kamgoin Village v Chairman, Secretary,Treasurer, Board of Trustees, Baringo Techinical College [2015] KEELC 248 (KLR)", Case Analysis (2015). Civil Suit No. 166 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/248/eng@2015-07-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.