Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNot stated on the extracted judgment· [2024] KEELC 4618 (KLR)

Omar & 161 others v National Land Commission & 4 others (Petition 19 of 2017) [2024] KEELC 4618 (KLR)

Environment and Land Court
12 June 2024
1,278 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The 3rd respondent filed a preliminary objection dated 26th July 2023 against the petitioners' Further Further Amended Petition dated 14th October 2022, on the single ground that depositions in an affidavit are statements under oath and cannot be amended. The 2nd respondent supported the objection. The petitioners conceded that amending the Further Amended Supporting Afidavit was a mistake but asked, through their written submissions, for leave to file a supplementary affidavit instead of striking out the petition. The court, per S. M. Kibunja, J, applied the Mukisa Biscuits definition of a preliminary objection and held that the ground raised a pure point of law requiring no evidence. On the merits, the court perused the impugned affidavit and found deletions and additions to primary depositions that could not be termed technical, holding that such depositions cannot be amended. The court also held that the petitioners' request for leave to file a further affidavit could not be entertained through written submissions; applications must be made by notice of motion, chamber summons or originating summons and served on other parties in line with Article 50 of the Constitution. The preliminary objection was therefore upheld: the Further Amended Supporting Afidavit was struck out, leaving the petition without supporting evidence, and since the Further Further Amended Petition could not stand without an affidavit in support, it too was struck out, with costs to the respondents on the basis that the petition was brought for the petitioners' personal benefit and not public interest. The file was ordered closed on 12th June 2024.

Key legal issues

#
01

Whether the preliminary objection raised a pure point of law

Holding

It did; no evidence outside the impugned affidavit was needed to determine it

Reasoning

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.

p. 3
02

Whether the amendments to the Further Amended Supporting Afidavit were permissible

Holding

They were not; they touched primary depositions, not technical matters, so the affidavit was struck out

Reasoning

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.

p. 3
03

Consequence for the Further Further Amended Petition

Holding

Having lost its supporting affidavit, the petition could not stand and was also struck out

Reasoning

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.

p. 3
04

Costs

Holding

Petitioners to pay the respondents' costs because the petition was for personal benefit, not public interest

Reasoning

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.

p. 3

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. 1.The 3rd respondent's preliminary objection dated 26th July 2023 has merit and is upheld
  2. 2.The petitioners' Further Amended Supporting Afidavit sworn on 14th October 2022 is struck out with costs
  3. 3.The Further Further Amended Petition dated 14th October 2022 is struck out with costs
  4. 4.The file be closed

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 50

Cases cited (7)

  • Sammy Ndungu Waity & Another v Independent Electoral and Boundaries Commission & 3 Others
    [2017] eKLR
  • Swaleh Gheithan Saanu v Commissioner of Lands & 5 others
    (2002) eKLR
  • Republic v Resident Magistrate's Court MKS & Stephen Maundu Muia
    (2004) eKLR
  • Bank of Africa Kenya Limited v Put Sarajevo General Engineering Co. Ltd & 2 Others
    [2018] eKLR
  • Phillip Chemwolo & Another v Augustine Kubebe
    [1982-1988] KLR
  • Menza Kasena v Ngala Katsole
    [2021] eKLR
  • Mukisa Biscuits Manufacturing Ltd v West End Distributors
    (1969) EA 696
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.