Silas Jackson Njeru & another v Nairobi City County [2022] KEELC 1707 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Effect of an unsigned, undated and uncommissioned supporting affidavit
The affidavit is fatally defective and of no legal value; it does not qualify to be an affidavit.
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.
Whether a constitutional petition must be supported by an affidavit
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.
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.
Consequence of the defective affidavit where the petition proceeds by written submissions only
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.
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.
Legal principles established
#- 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
#- 1.The Petition is struck out
- 2.Costs of the petition to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.