Ndalila & 2 others v Wambu (Environment and Land Appeal 13 of 2024) [2024] KEELC 5483 (KLR)
The bottom line
#The Bungoma Environment and Land Court dismissed a stay application because the applicants never attached the documents their affidavit promised, showing paperwork slip-ups can sink strong cases.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants established a case for stay of execution/injunction suspension and status quo pending appeal
The application failed because the supporting affidavit referred to documentary evidence (annexures AN-1(a) & (b), AN-2 to AN-6) which was never attached, leaving the factual claims unproven.
The court noted that the supporting affidavit made numerous references to documentary evidence but none of the annexures were actually attached. Since the appellate court's mandate requires re-evaluating the evidence that was before the trial court, the absence of those documents made it impossible to upset the trial court's findings. Failure to attach the documents was held to be fatal to the application.
Effect of omitting annexures on the validity of an affidavit
Omission of annexures does not render the entire affidavit defective, but the court will only rely on paragraphs not based on documentary evidence.
The court affirmed the trite position that an affidavit and its annexures together constitute evidence, and a party seeking to prove facts by affidavit must attach the documents referred to. Unattached references leave those paragraphs hollow and unproven. However, the defect is confined to the affected paragraphs; the remaining paragraphs of the affidavit remain usable evidence.
Legal principles established
#- An affidavit and its annexures constitute evidence; a deponent who refers to documents must attach them, and failure to do so renders the supporting paragraphs hollow and unproven.
Court orders
#- 1.The Notice of Motion application dated 11th April 2024 is dismissed
- 2.Costs of the application awarded to the Respondent
- On appeal from
- Chief Magistrate's Court (Bungoma)
- Bungoma CM ELC No. E019 of 2024
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndalila & 2 others v Wambu (Environment and Land Appeal 13 of 2024) [2024] KEELC 5483 (KLR)", Case Analysis (2024). Bungoma ELC Appeal (interlocutory application dated 11th April 2024), arising from Bungoma CM ELC No. E019 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5483/eng@2024-07-18
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