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ELCDismissedEnvironment & Land Case 298 of 2017· [2023] KEELC 18242 (KLR)

Mbugua v Nduta & 6 others

Environment and Land Court
16 June 2023
5,529 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to let a landowner fix a defective affidavit his advocate had wrongly sworn, dismissing his application with costs.

What this practically means

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Executive summary

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The plaintiff/applicant, by Notice of Motion dated March 21, 2023, sought leave to file a fresh and complying verifying affidavit in place of the amended verifying affidavit dated December 21, 2019, which had been sworn by his previous advocates rather than by himself, contrary to Order 4 Rule 1(2) of the Civil Procedure Rules 2010 and Sections 4 and 5 of the Oaths and Statutory Declarations Act. The 1st, 5th and 7th defendants opposed, arguing the affidavit was a forgery and nullity incapable of substitution, that the plaintiff had adopted and ratified it in his testimony before conceding under cross-examination on June 9, 2022 that the signature was not his, and that the application was mounted after over eight months of unexplained delay. The court framed three issues: whether the affidavit was a nullity incapable of substitution; whether the application sought to defeat rights accrued to the defendants from cross-examination; and whether the application was brought after inordinate, unexplained delay. Applying Deposit Protection Fund v Macharia and Macfoy v United Africa Co, the court held a nullity is void ab initio and cannot be resuscitated or substituted. It further held the plaintiff, having owned the forged signature in evidence-in-chief and conceded the fraud only under cross-examination, sought to sanitize perjury, fraud and forgery, and came to equity with unclean hands. The delay was inordinate and the explanation misleading, engaging the doctrine of laches. The application was dismissed with costs to the defendants.

Key legal issues

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01

Whether the advocate-sworn verifying affidavit was a nullity incapable of substitution

Holding

Yes; the affidavit sworn by the previous advocate contravened Order 4 Rule 1(2) and was void ab initio, and a nullity cannot be replaced with a fresh affidavit

Reasoning

Order 4 Rule 1(2) requires the plaint to be accompanied by an affidavit sworn by the plaintiff personally. The previous advocate usurped the plaintiff's authority and swore the affidavit, an act the court held ipso facto illegal. Relying on Deposit Protection Fund and Macfoy, the court held a void act is incurably bad and cannot be resuscitated by amendment or substitution.

p. 8
02

Whether granting leave would defeat accrued rights of the defendants

Holding

Yes; the defendants acquired a legitimate right and expectation from admissions extracted in cross-examination, which the application sought to defeat

Reasoning

The plaintiff adopted and ratified the defective affidavit in evidence-in-chief, then conceded the forgery only under cross-examination. Granting leave would confer undue mileage on the plaintiff contrary to Article 50(1) and (2) fair-trial equality, and the plaintiff's unclean hands disentitled him from equitable relief.

p. 10
03

Whether the application was filed after inordinate and unexplained delay

Holding

Yes; over eight months elapsed after the June 9, 2022 concession with no plausible explanation, engaging the doctrine of laches

Reasoning

The defect became apparent on June 9, 2022 when the plaintiff conceded the signature was not his, yet the application was filed on March 21, 2023. The explanation that new advocates discovered the anomaly on September 27, 2022 was found misleading, and sheer inaction by counsel is not an excusable mistake.

p. 11

Legal principles established

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  • A verifying affidavit must be sworn by the plaintiff personally; an advocate swearing it on the client's behalf is illegal and renders the document a nullity
  • A nullity cannot be cured by substitution, amendment or replacement
  • A party seeking equitable discretion must explain delay plausibly and come with clean hands

Court orders

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  1. 1.The Application dated March 21, 2023 be and is hereby Dismissed with costs to the Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 4 Rule 1(2)
  • Oaths and Statutory Declarations ActSections 4 and 5
  • Civil Procedure ActSection 3A
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 50(1) and (2)
  • Penal CodeSection 108

Cases cited (13)

  • Hussein Abdala Ataib versus Josephine Mwikali Mwangangi
    Succession Cause No. 10 of 2014 (UR)

    Mistake of counsel ought not vitiate a litigant's rights

  • Jamii Bora Bank Ltd versus Earnest & Young LLP
    Civil Case No. 337 of 2016 (UR)
  • Tana & Ardhi Rivers Development Authority versus Jeremiah Kimigo Mwakia & 3 Others
    (2015) eKLR
  • Agip Kenya Ltd versus Highland Tyre Ltd
    (2001) eKLR
  • Ochieng Oduol versus Richard Kuloba
    Nairobi Civil Appeal No. 2 of 2002 (UR)
  • Kenneth Kariuki Githii versus Royal Media Services Ltd
    (2009) eKLR
  • Josephat Kipchirchir Sigilai versus Gotab Sanik Enterprises Ltd & 4 Others
    (2007) eKLR
  • David Jonathan Grantham & Another versus National Social Security Fund
    (2007) eKLR
  • Kenya Union of Entertainment and Music Industry Employee versus Bomas of Kenya
    (2021) eKLR
  • Swalle Gheithan Saanum versus Commissioner of Lands & 5 Others
    (2002) eKLR
  • Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) versus Rosaline Njeri Macharia & another
    [2016] eKLR

    A nullity is incapable of resuscitation or amendment

  • Macfoy versus United Africa Co. Ltd
    [1961] 3 All E.R. 1169

    A void act is a nullity, incurably bad; proceedings founded on it collapse

  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    [2020] eKLR

    A party must justify exercise of discretion; inaction by counsel is not excusable mistake

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit; application brought under Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mbugua v Nduta & 6 others", Case Analysis (2023). Environment & Land Case 298 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18242/eng@2023-06-16

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