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ELCDismissedEnvironment & Land Case 221 of 2014· [2022] KEELC 15062 (KLR)

Bore v Chebet

Environment and Land Court
23 November 2022
FNFM Njoroge
5,206 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a land case dismissal application because the husband who swore its supporting affidavit had no proof of authority.

What this practically means

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Executive summary

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The defendant, Nancy Chebet, applied by notice of motion dated May 25, 2022 for the striking out or dismissal of the plaintiff's Originating Summons filed in 2014 claiming adverse possession and trust over LR Number Nakuru/Olenguruone/Amalo/853, contending the suit was res judicata given prior litigation in Molo SRMCC No 3 of 1993, Nakuru HCCA No 105 of 1996, and various Land Disputes Tribunal proceedings. She also filed a preliminary objection on jurisdiction and res judicata. The supporting affidavit was sworn not by the defendant but by her husband, Joel Kiprono Mibei, who asserted she was 'currently unavailable'. The plaintiff objected that the deponent was a stranger lacking locus, relying on PMM Private Safaris v Kevin Ijatia. The court framed four issues: competence of the non-party affidavit, proof of the deponent's authority, res judicata, and costs. It held that a non-party may swear a supporting affidavit only with demonstrated authority from a party; no written authority was exhibited, particulars of the defendant's unavailability were absent, and spousal status was unproven. Distinguishing the insurance subrogation authorities, the court struck out the affidavit summarily, holding it worthless without proof of authority. Consequently, the court could not determine the res judicata question, and the application was dismissed with costs to the plaintiff. The parties were directed to appear on December 8, 2022 to fix a hearing date for the main suit.

Key legal issues

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01

Competence of a supporting affidavit sworn by a non-party

Holding

A non-party may swear a supporting affidavit only with demonstrated authority from a party; the marital relationship with the applicant does not cure the absence of proof of authority

Reasoning

The court accepted that non-litigants can swear affidavits if duly authorized, distinguishing insurance subrogation cases. Here Joel Kiprono Mibei exhibited no written authority, gave no particulars of the defendant's alleged unavailability, and spousal status was unproven. The affidavit sought to terminate the suit finally on res judicata, so heightened scrutiny applied. The affidavit was struck out as worthless.

p. 8
02

Whether the suit is res judicata

Holding

Not determined; without a supporting affidavit the court could not address the res judicata question

Reasoning

The res judicata objection rested entirely on the struck-out affidavit. The court held it could not determine the issue without evidentiary support, and dismissed the application, leaving the main suit to proceed to hearing.

p. 8
03

Burden of proving the deponent's authority

Holding

The burden lay on the applicant/deponent to prove authority; failure attracts the adverse inference that no authority was given

Reasoning

Applying sections 108, 109 and 112 of the Evidence Act and the adverse-inference principle, the court held that authority of a litigant to act on her behalf must be proved. No written authority was exhibited and particulars of the defendant's unavailability were not given, so the only conclusion was that no authority existed.

p. 8

Legal principles established

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  • An affidavit sworn by a non-party is not fatal to an interlocutory application provided the deponent has the authority of a party to swear to matters within his knowledge
  • Authority of a deponent to swear a vital supporting affidavit on behalf of a litigant must be proved, preferably in writing; without it the affidavit is worthless
  • Where a party fails to produce evidence in its control, the court may draw an adverse inference

Court orders

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  1. 1.The supporting affidavit sworn by Joel Kiprono Mibei is struck out summarily
  2. 2.The application dated May 25, 2022 is dismissed with costs to the respondent
  3. 3.Parties to appear before the court on December 8, 2022 for fixing of a hearing date for the main suit

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 34(1)
  • Civil Procedure RulesOrder 19 Rule 3(1)
  • Evidence ActSection 108
  • Evidence ActSection 109
  • Evidence ActSection 112

Cases cited (18)

  • PMM Private Safaris V Kevin Ijatia
    [2006] eKLR

    Affidavit sworn by a stranger to the proceedings should be struck out

  • Walter Oneya & another Vs Jacquiline Anyango Ogude
    [2018] eKLR

    Any person with relevant information, duly authorized, can swear an affidavit

  • Kenya Commercial Bank Limited Vs Muiri Coffee Estates Limited & another
    [2016] eKLR

    Rationale of the doctrine of res judicata

  • John Florence Maritime Services & another V Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR

    Rationale of the doctrine of res judicata

  • Independent Electoral & Boundaries Commission V Maina Kiai & 5 others
    [2017] eKLR

    Rationale of the doctrine of res judicata

  • Kombe Vs Omar & 2 others
    [2003] 3 KLR (EP) 391

    Adverse possession claim should have been raised in previous suit

  • Gulam Miriam Noordeen Vs Julius Charo Karisa
    [2015] eKLR

    Adverse possession may be raised even by way of defence

  • Joseph Kimatu Ndolo V Alex Munguu Mweti
    [2022] eKLR

    Time for adverse possession runs from date of issuance of title deed

  • Violet Omusula Sikenyi V Vincent Kamari
    [2006] eKLR

    Time for adverse possession runs from date of issuance of title deed

  • Stephen Mwangi Gatunge V Edwin Onesmus Wanjau
    [2022] eKLR

    Time for adverse possession does not run during ongoing litigation over the same subject matter

  • Nicholas Njeru V The Attorney General & 8 others
    Civil Appeal No 110/2011 [2013] eKLR

    Objectives of the doctrine of res judicata

  • Moses Mbatia V Joseph Wamburu Kihara
    [2021] eKLR

    Res judicata cannot be raised where facts are disputed and subject to proof by evidence

  • Joseph Malakwen Lelei & another V Rift Valley Land Disputes Appeals Committee & 2 others

    Land Disputes Tribunals lack jurisdiction over land ownership disputes

  • Rossage – V – Rossage and Others
    [1960] 1 ALL ER 660

    Hearsay evidence inadmissible where orders sought decide rights of parties

  • Tahmeed Coach Limited & 2 others v Salim Mae Peku
    [2014] eKLR

    Officer of insurer competent to swear affidavit under subrogation

  • Osman Godhana Wario v JMN (a minor suing through next friend JKK)
    [2022] eKLR

    Relied on Tahmeed Coach on affidavits by insurer's officers

  • Kenya Akiba Micro Financing Ltd v Ezekeil Chebii & 14 Others
    HCCC No 644 of 2005

    Adverse inference where a party withholds evidence in its control

  • Kimotho –vs- KCB
    (2003) 1 EA 108

    Adverse inference should be drawn upon a party who fails to call evidence in his possession

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Bore v Chebet", Case Analysis (2022). Environment & Land Case 221 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15062/eng@2022-11-23

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