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ELCStruck OutChamber Summons application dated 10th March 2021 (suit filed March 2012; HCCC (Mombasa) No. 331 of 2008 referenced)· [2021] KEELC 650 (KLR)

Mawando Limited & another v Thousand Palms Beach Hotel Limited & another; SBM Bank (K) Ltd (Interested Party) [2021] KEELC 650 (KLR)

Environment and Land Court
29 November 2021
LNL. Naikuni
1,823 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land dispute application because the supporting affidavit was never signed — an avoidable error that cost the applicant money and time.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Mombasa on a Chamber Summons dated 10th March 2021 by Zahid Iqubal Dean, a director and shareholder of the 1st Defendant company, seeking to be joined as a Plaintiff in a land suit over Plot No. 736/II/MN (Title No. CR 16392) and to have the Plaint further amended. He alleged that the purported directors of the 1st Defendant fraudulently acquired a provisional title after misrepresenting that the original title was lost, and charged the property without consent. The 1st Defendant opposed, arguing res judicata arising from HCCC (Mombasa) No. 331 of 2008, lack of a cause of action in favour of the applicant, and lack of jurisdiction over company-law issues. The court, however, did not reach the merits: it observed that the supporting affidavit was unsigned and its annexure 'Z1' was neither dated, signed nor commissioned. Applying Section 5 of the Oaths and Statutory Declaration Act and Order 19 Rules 6 and 7 of the Civil Procedure Rules, and following Solomon Software v Microsoft and C.M.C. Motors Group v Bengeria Arap Lorir, it held that an unsigned affidavit is fatally defective, subsidiary legislation cannot override an Act of Parliament, and non-compliance should not be encouraged. The application was struck out with costs to the 1st Defendant, with liberty to regularize the defect in future.

Key legal issues

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01

Whether an unsigned supporting affidavit can be excused as a mere irregularity

Holding

No - failure to sign is a breach of Section 5 of the Oaths and Statutory Declaration Act, and the defect renders the application incompetent

Reasoning

The court found the supporting affidavit unsigned and its annexure undated, unsigned and uncommissioned. Relying on Solomon Software v Microsoft and C.M.C. Motors Group v Bengeria Arap Lorir, it held that non-compliance with Section 5 is illegal and not excusable under Order 19 Rule 7, because subsidiary legislation (the Civil Procedure Rules) cannot override an Act of Parliament. An application supported only by a defective affidavit is struck out.

p. 2

Legal principles established

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  • An unsigned supporting affidavit is fatally defective; an application founded solely on it is incompetent and should be struck out, since subsidiary legislation cannot override an Act of Parliament

Court orders

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  1. 1.The Chamber Summons application dated 10th March 2021 is struck out under Order 2 Rule 15(1)(a), (b), (c) and (d), Order 19 (6) & (7) of the Civil Procedure Rules, 2010 and Section 5 of the Oaths and Statutory Declaration Act, Cap 15
  2. 2.Costs to the 1st Defendant/Respondent
  3. 3.Leave granted to the Intended 2nd Plaintiff to consider regularizing the anomaly in future

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 1 Rule 1(10)(2), Order 8 Rule 1, Order 8 Rule 3(5), Order 19 Rules 6 & 7, Order 2 Rule 15(1)(a)-(d)
  • Oaths and Statutory Declaration Act, Cap 15Section 5

Cases cited (2)

  • Solomon Software (EA) Ltd & another - Versus - Microsoft Corporation t/a Great Plains Business Solutions
    (2002) eKLR
  • C.M.C. Motors Group Limited – Versus - Bengeria Arap Lorir trading as Marben School and another
    (2012) eKLR
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act, Cap. 21; Order 1 Rule 1(10)(2) and Order 8 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mawando Limited & another v Thousand Palms Beach Hotel Limited & another; SBM Bank (K) Ltd (Interested Party) [2021] KEELC 650 (KLR)", Case Analysis (2021). Chamber Summons application dated 10th March 2021 (suit filed March 2012; HCCC (Mombasa) No. 331 of 2008 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/650/eng@2021-11-29

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