Omar & 161 others v National Land Commission & 4 others (Petition 19 of 2017) [2024] KEELC 4618 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land petition because improperly amended affidavits cannot be fixed through written submissions.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raised a pure point of law
It did; no evidence outside the impugned affidavit was needed to determine it
Applying Mukisa Biscuits, the court held the objection that affidavit depositions cannot be amended was a point of law arising from the pleadings itself, capable of disposing of the petition without ascertaining any facts or exercising discretion on evidence.
Whether the amendments to the Further Amended Supporting Afidavit were permissible
They were not; they touched primary depositions, not technical matters, so the affidavit was struck out
The court perused the affidavit and found deletions and additions on primary depositions that could not be termed technical. Petitioners' counsel conceded the amendment was a mistake and did not justify the amendments, instead seeking leave to file another affidavit through submissions, which the court rejected as procedurally irregular.
Consequence for the Further Further Amended Petition
Having lost its supporting affidavit, the petition could not stand and was also struck out
The amended petition had itself introduced and removed parties, averments and prayers, and depended on the struck-out Further Amended Supporting Afidavit. Without supporting evidence it could not stand on its own, so the court struck it out as well, effectively ending the petition.
Costs
Petitioners to pay the respondents' costs because the petition was for personal benefit, not public interest
Applying the general rule that costs follow the event, the court found no good reason to depart from it. It characterised the petition as brought for the personal benefit of the petitioners rather than public interest, so they were ordered to pay the respondents' costs.
Legal principles established
#- Depositions in an affidavit cannot be amended; only the technical parts of an affidavit may be amended
- Applications for relief must be made through the processes provided by the rules and served on other parties, not raised through written submissions
- A petition cannot stand without an affidavit in support; striking out the supporting affidavit causes the petition itself to be struck out
Court orders
#- 1.The 3rd respondent's preliminary objection dated 26th July 2023 has merit and is upheld
- 2.The petitioners' Further Amended Supporting Afidavit sworn on 14th October 2022 is struck out with costs
- 3.The Further Further Amended Petition dated 14th October 2022 is struck out with costs
- 4.The file be closed
- Jurisdiction invoked
- Original constitutional/petition jurisdiction of the Environment and Land Court (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar & 161 others v National Land Commission & 4 others (Petition 19 of 2017) [2024] KEELC 4618 (KLR)", Case Analysis (2024). Not stated on the extracted judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4618/eng@2024-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.