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ELCDismissedNot stated in the judgment (application dated 1st February 2017)· [2018] KEELC 3917 (KLR)

Monica Jeruto Ruto v Simon Ngugi & 8 others [2018] KEELC 3917 (KLR)

Environment and Land Court
26 February 2018
MOM.A ODENY
1,672 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner's bid to stop defendants dealing with her Eldoret plot failed because her affidavits were undated and unattested, so the court dismissed the application with costs.

What this practically means

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Executive summary

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The plaintiff/applicant moved the court by notice of motion dated 1st February 2017 seeking a temporary injunction restraining the defendants from dealing with property known as Eldoret Municipality Block 15/1753, pending the hearing of the suit. The plaintiff claimed to be the registered owner and alleged that the defendants had unlawfully entered and erected structures on the land, infringing her constitutional right to property under Article 40. Through counsel, the plaintiff relied on the Giella v Cassman Brown principles and Mrao v First American Bank on prima facie cases, contending she had a registered title and would suffer irreparable loss not compensable by damages. The defendants, through a replying affidavit sworn by Simon Ngugi Mwangi, opposed the application, contending the plaintiff had instructed a real estate agent, Sweetland Consultants, to subdivide and sell the land to settle her son's debt, and that they had made substantial developments and resided on the land with their families; the balance of convenience favoured them. The court, however, did not reach the merits of the injunction criteria. It found glaring procedural defects: the plaint was undated, the verifying affidavit was neither attested by a commissioner for oaths nor a Magistrate and was undated, and the supporting affidavit was likewise unattested. Holding these to be mandatory requirements rather than technicalities, the court expunged both affidavits and dismissed the application as unsupported, awarding costs to the defendants. The ruling was delivered by M.A Odeny J at Eldoret on 26th February 2018.

Key legal issues

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Validity of the affidavits supporting the application

Holding

The verifying affidavit and supporting affidavit were defective - undated and unattested - and were expunged, leaving the application unsupported

Reasoning

The court found the plaint undated, the verifying affidavit neither attested by a commissioner for oaths nor a Magistrate and undated, and the supporting affidavit unattested. It held these are statutory requirements, not technicalities, and without valid affidavits the application could not stand. It therefore expunged the affidavits and dismissed the application without considering the Giella v Cassman Brown criteria on the merits.

p. 4

Legal principles established

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  • A plaint must be accompanied by a verifying affidavit sworn by the plaintiff, and affidavits must be attested by a commissioner for oaths or a Magistrate; documents failing these requirements do not qualify as affidavits and may be expunged

Court orders

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  1. 1.The verifying affidavit and the supporting affidavit are expunged from the court record
  2. 2.The application is dismissed
  3. 3.Costs to the defendants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40

Cases cited (4)

  • Giella v Cassman Brown
    (1973) EA 360
  • Mrao -Vs- First American Bank Of Kenya Limited & 2 Others
    (2003) KLR 125
  • Simon Kipngetich Bett vs. Richard C. Kandie
    [2012]
  • Films Rover International
    [1986] EALL ER
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property (application for temporary injunction under the Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Monica Jeruto Ruto v Simon Ngugi & 8 others [2018] KEELC 3917 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 1st February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3917/eng@2018-02-26

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