Nickson v Makhanu & 3 others (Environment & Land Case E001 of 2024) [2024] KEELC 5689 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Supplementary Affidavit was validly commissioned under Section 5 of the Oaths and Statutory Declarations Act and Rule 7
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
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.
Whether the annexures complied with Rule 9 of the Oaths and Statutory Declarations Rules on serialization
The annexures were securely serialized and stamped by the Commissioner, so the objection was baseless
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.
Whether the annexed documents were electronic records requiring a Section 106B certificate
The objection was dismissed; no evidence established that the documents were screenshots or electronically generated records
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.
Whether the notice met the threshold of a preliminary objection
It was not a proper preliminary objection but an abuse of the court's process
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated as raised against the Plaintiff's Supplementary Affidavit and its annexures is dismissed
- 2.Costs of the Preliminary Objection awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; preliminary objection disposed of by way of written submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.