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ELCStruck OutELC Petition No. E009/2020· [2022] KEELC 1707 (KLR)

Silas Jackson Njeru & another v Nairobi City County [2022] KEELC 1707 (KLR)

Environment and Land Court
8 February 2022
843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land rights petition because its supporting affidavit was unsigned, undated and never commissioned — paperwork errors killed the entire case.

What this practically means

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Executive summary

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The petitioners, Silas Jackson Njeru and Florence Gatavi Njeru, petitioned the Environment and Land Court at Nairobi (Milimani) alleging contravention of their constitutional rights under Articles 40, 43 and 47 arising from the alleged compulsory acquisition of Plot Nos. C61 & C66, Kariobangi South/KCC Village by the Nairobi City County. The petition was filed with a supporting affidavit and 13 annexures; the Respondent replied by affidavit, and the petitioners filed a supplementary affidavit with leave. The parties agreed on 14th October 2021, before Angote J, to dispose of the matter by written submissions. While preparing judgment, the court (M.D. Mwangi J) noticed that the supporting affidavit was unsigned by the deponent, undated, and never commissioned before a Commissioner for Oaths. Applying the Supreme Court's decision in Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli, where a similarly defective replying affidavit was held fatally defective and of no legal value, the court found the supporting affidavit had no legal standing. Although Rule 11(1) of the Mutunga Rules does not mandatorily require an affidavit to support a constitutional petition, all 13 documents the petitioners relied on were annexed to the defective affidavit, which the court described as the bedrock of the petition. Because the petition was to be determined on affidavit evidence alone, its removal left the petition without material evidence. The court struck out the petition with costs to the Respondent, without reaching the merits of the alleged rights violations.

Key legal issues

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01

Effect of an unsigned, undated and uncommissioned supporting affidavit

Holding

The affidavit is fatally defective and of no legal value; it does not qualify to be an affidavit.

Reasoning

Applying the Supreme Court's decision in Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli, where a replying affidavit that was unsigned, undated and uncommissioned was held fatally defective, the court held that the petitioners' supporting affidavit, which suffered the same defects, contravened all legal requirements for an affidavit and had to be disregarded entirely.

p. 2
02

Whether a constitutional petition must be supported by an affidavit

Holding

No - Rule 11(1) is permissive, not mandatory; but documents a party relies on must be annexed to a supporting affidavit or to the petition itself.

Reasoning

The court noted that Rule 11(1) uses the word 'may', showing the rule is not couched in mandatory terms. However, under sub-rule (2), any document a party wishes to rely on must be annexed to the supporting affidavit or, absent one, to the petition. Here all 13 documents relied on were annexed to the defective affidavit, which was the bedrock of the petition.

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03

Consequence of the defective affidavit where the petition proceeds by written submissions only

Holding

Since the parties agreed to dispose of the petition by written submissions and the affidavit carried all the evidence, the petition was left without material evidence and had to be struck out.

Reasoning

Having agreed to written submissions, the petitioners could not adduce oral evidence; determination depended on affidavit evidence. Striking out the defective supporting affidavit therefore left the petition unsupported by any material evidence, the supplementary affidavit being merely responsive to the replying affidavit. The court had no alternative but to strike out the petition.

p. 2

Legal principles established

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  • An affidavit that is neither signed by the deponent, dated, nor commissioned before a Commissioner for Oaths has no legal value and is treated as if it does not exist.
  • Rule 11(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 is not mandatory - a constitutional petition may, but need not, be supported by an affidavit.
  • Where a petition is to be determined on written submissions and affidavit evidence alone, striking out the defective supporting affidavit leaves the petition without material evidence and it must fail.

Court orders

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  1. 1.The Petition is struck out
  2. 2.Costs of the petition to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23(1) and (3), 40, 43, 47
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 11(1) and (2)
  • Land Acquisition Actnot specified
  • Land Actnot specified

Cases cited (1)

  • Gideon Sitelu Konchellah Vs Julius Lekakeny Ole Sunkuli & 2 others
    (2018) eKLR
Jurisdiction invoked
Articles 22 and 23(1) and (3) of the Constitution of Kenya (enforcement of Bill of Rights) in respect of alleged contravention of Articles 40, 43 and 47

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, "Silas Jackson Njeru & another v Nairobi City County [2022] KEELC 1707 (KLR)", Case Analysis (2022). ELC Petition No. E009/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1707/eng@2022-02-08

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