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ELCDismissed· [2024] KEELC 5689 (KLR)

Nickson v Makhanu & 3 others (Environment & Land Case E001 of 2024) [2024] KEELC 5689 (KLR)

Environment and Land Court
25 July 2024
2,775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff sued the Defendants on 03/01/2024 together with a Notice of Motion supported by an affidavit. After the Plaintiff filed a Supplementary Affidavit sworn on 16/04/2024, the 2nd Defendant raised a preliminary objection contending that the affidavit and its annexures were fatally defective on three grounds: non-compliance with Section 5 of the Oaths and Statutory Declarations Act and Rule 7 of the Rules in the commissioning of the affidavit; non-compliance with Rule 9 regarding serialization of exhibits; and non-compliance with Section 106B of the Evidence Act, the annexed documents allegedly being screenshots or electronic printouts requiring a certificate. In written submissions the 2nd Defendant argued the deponent's signature appeared scanned or photocopied, and relied on authorities on electronic evidence. The Plaintiff countered that the objection did not meet the Mukisa Biscuits threshold, that defects could be cured under Article 159(2)(d) of the Constitution and Section 1A of the Civil Procedure Act, and that the grounds required evidence. The court, applying Mukisa Biscuits, Bashir Haji Abdullahi and Susan Wairimu Ndiangui, held that a preliminary objection must be a pure point of law. Each limb failed: the signature complaint was conjecture with no proof under Section 107 of the Evidence Act; the court's own perusal showed the annexures were serialized and stamped by the Commissioner; and there was no evidence the documents were screenshots, which determination would in any event require evidence outside a preliminary objection. The objection was dismissed as an abuse of process, with costs to the Plaintiff.

Key legal issues

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01

Whether the Supplementary Affidavit was validly commissioned under Section 5 of the Oaths and Statutory Declarations Act and Rule 7

Holding

The limb was dismissed; the faintness of the deponent's signature gave no basis to infer non-attendance before the Commissioner, and on perusal both signatures bore the same print

Reasoning

The 2nd Defendant's assertion that the signature was scanned or photocopied was speculative. Section 107 of the Evidence Act places the burden of proof on the alleging party, and the civil standard is a balance of probabilities. The court's own inspection of the original documents showed both signatures were of the same print, with only a slight difference in faintness, leaving no evidence the deponent did not appear before the Commissioner.

p. 4
02

Whether the annexures complied with Rule 9 of the Oaths and Statutory Declarations Rules on serialization

Holding

The annexures were securely serialized and stamped by the Commissioner, so the objection was baseless

Reasoning

The court perused the annexures and found serializations RTY1 through RTY6 with the Commissioner's stamp and signature at each. There was no denial by the Commissioner. The argument was found baseless and an abuse of process and was dismissed.

p. 4
03

Whether the annexed documents were electronic records requiring a Section 106B certificate

Holding

The objection was dismissed; no evidence established that the documents were screenshots or electronically generated records

Reasoning

Section 106B of the Evidence Act governs admissibility of electronic records, with sub-section 4 requiring a certificate. But the party asserting the documents were screenshots produced no evidence and the originals were not availed. Absent admission, such a determination requires evidence, which would take the matter outside the scope of a preliminary objection.

p. 5
04

Whether the notice met the threshold of a preliminary objection

Holding

It was not a proper preliminary objection but an abuse of the court's process

Reasoning

Applying Mukisa Biscuits, a preliminary objection must be a pure point of law. Each limb here required ascertainment of facts (whether a signature was original, whether documents were screenshots), placing them outside the definition. The court found the objection was designed to waste the court's time.

p. 6

Legal principles established

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  • A preliminary objection rests on a pure point of law and cannot be raised where facts must be ascertained
  • He who alleges must prove; guesswork is not proof in civil matters
  • An objection requiring production of evidence falls outside the definition of a preliminary objection

Court orders

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  1. 1.The Preliminary Objection dated as raised against the Plaintiff's Supplementary Affidavit and its annexures is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the Plaintiff

Authorities

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Legislation

  • Oaths and Statutory Declarations ActSection 5
  • Oaths and Statutory Declarations RulesRules 7 and 9
  • Evidence ActSections 106B (including 106B(4)) and 107
  • Constitution of KenyaArticle 159(2)(d) and Article 22(3)(b) and (d)
  • Civil Procedure ActSection 1A

Cases cited (12)

  • Regina Munyiva Ndunge v Kenya Commercial Bank Limited
    [2005] eKLR
  • Chris Munga N. Bichage & 2 others v Independent Electoral & Boundaries Commission & 2 Others
    [2017] eKLR
  • Republic v Barisa Wayu Mataguda
    [2011] eKLR
  • Idris Abdi Abdullahi v Ahmed Bashane & 2 others
    [2018] eKLR
  • Bhavna Patel Mandaliya v Chetan Aroon Solanki
    [2021] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Aviation and Allied Workers Union Kenya versus Kenya Airways Ltd & 3 others
    Application No. 50 of 2014, [2015] eKLR
  • Saggu v. Roadmaster Cycle Ltd
    [2002] 1 EA 258
  • George Oraro v Baker Eston Mbaja
    HCCC No. 85 of 1992
  • Mehuba Gelan Kellil & 2 Others v Abdulkadir Abdilhim and others
    [2015] eKLR
  • Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others
    [2004] eKLR
  • Susan Wairimu Ndiangui v Pauline W. Thuo & Another
    [2005] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; preliminary objection disposed of by way of written submissions

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nickson v Makhanu & 3 others (Environment & Land Case E001 of 2024) [2024] KEELC 5689 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5689/eng@2024-07-25

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