Absaloms v County Government of Kisumu (Environment & Land Case E009 of 2023) [2024] KEELC 1408 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of the Replying Affidavit commissioned by the Defendant's own advocate
The Replying Affidavit was struck out and expunged from the record as irregular and inadmissible because it was commissioned by the advocate acting for the Respondent, contrary to the proviso to section 4(1) of the Oaths and Statutory Declarations Act.
Section 4(1) of the Oaths and Statutory Declarations Act empowers commissioners for oaths to administer oaths, but the proviso bars a commissioner from exercising those powers in any proceeding in which he is the advocate for any party or in which he is interested. The jurat showed Awuor Mariella, the Respondent's counsel, commissioned the affidavit. Following precedent, the court held this an incurable irregularity and struck the affidavit out.
Whether a prohibitory temporary injunction should issue
The prohibitory temporary injunction was granted as prayed, the applicant having demonstrated a prima facie case as registered owner and a danger of the property being wasted, damaged or alienated.
Under Order 40 Rule 1 of the Civil Procedure Rules 2010, a temporary injunction may issue where property in dispute is in danger of being wasted, damaged or alienated. It was not denied that the applicant holds a lease or that the Defendant engaged in the complained-of acts. The challenge to the legality of the title as public land was left for trial. On the certificate of lease and supporting affidavit, the applicant demonstrated danger of damage and threatened violation of rights under article 40 and sections 25 and 26 of the Land Registration Act.
Whether a mandatory injunction should issue at the interlocutory stage
The mandatory injunction was refused because special circumstances were not demonstrated and the case is not clear enough to be decided at once.
Following Court of Appeal authority (Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma and Kenya Breweries Ltd v Washington O. Okeyo), a mandatory injunction may be granted on an interlocutory application only in the absence of special circumstances. The court found that the alleged destruction of perimeter evidence raised matters requiring full trial, and issues raised in the Respondent's opposition on legality of the title remained for determination at the hearing of the main suit.
Legal principles established
#- A Commissioner for Oaths cannot commission an affidavit in a proceeding in which he acts as advocate for any of the parties; such an affidavit is irregular and inadmissible and liable to be struck out.
- A mandatory injunction will not normally issue at an interlocutory stage unless there are special circumstances.
- A registered owner who demonstrates by affidavit that property in dispute is in danger of being wasted, damaged or alienated satisfies the conditions for a temporary injunction under Order 40 Rule 1.
Court orders
#- 1.A prohibitory temporary injunction restraining the Defendant, its agents, servants and/or employees from entering, occupying, remaining on, accessing, damaging or in any manner interfering with the Plaintiff's quiet and peaceful possession of Kisumu/Nyamasaria Market/24 pending the hearing and determination of the suit
- 2.Costs of the application awarded to the applicant
- Jurisdiction invoked
- Original civil jurisdiction over land disputes; interlocutory application under Order 40 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Absaloms v County Government of Kisumu (Environment & Land Case E009 of 2023) [2024] KEELC 1408 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1408/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.