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ELCStruck OutNotice of Motion dated 2nd December 2024 (suit number not stated in the judgment)· [2025] KEELC 292 (KLR)

Alem & another (Both Suing on Behalf of themselves and on Behalf of the Landlords and Tenants of Migadini Kipevu Area at Chaani) v Focus Container Freight Stations Limited; National Environment Management Authority (Interested Party) (Environment and Planning Civil Case E016 of 2024) [2025] KEELC 292 (KLR)

Environment and Land Court of Kenya
31 January 2025
5,583 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Mombasa court threw out residents' bid to stop an LPG plant in Chaani because their supporting affidavit was wrongly sworn by two people at once.

What this practically means

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Executive summary

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The Plaintiffs/Applicants, Amon Ochieng Alem and Miriam Kazungu, sued on behalf of themselves and the landlords and tenants of Migadini Kipevu area at Chaani, seeking temporary injunctions to stop the Defendant from holding assemblies toward setting up an LPG plant in Migadini, Chaani ward, Mombasa, and to bar the Interested Party (NEMA) from receiving a fresh Environmental Social Impact Assessment Report. They relied on the National Environment Tribunal's 2022 revocation of a prior licence and alleged manipulated public participation. The Defendant opposed, contending the project was at a preliminary stage, no licence application had been made, the suit was premature, an earlier similar suit had been withdrawn, and the joint supporting affidavit was incompetent with irregular signatures. The 2nd Plaintiff withdrew from the suit on 11th December, 2024. The court framed two issues: the merit of the application and costs. It held that an affidavit sworn jointly by two deponents is incompetent in support of an application for interim reliefs, distinguishing the English and Indian practices, and held the defect was not a mere technicality curable under Article 159(2)(d). Noting discrepancies between the 2nd Plaintiff's signatures on the supporting affidavit and the Notice of Withdrawal, the court struck out the application as fatally defective without considering the merits, awarded costs to the Defendant, and directed a mention before Hon. Justice Olola for pre-trial directions on the substantive suit.

Key legal issues

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01

Whether a joint affidavit sworn by two deponents is competent in support of an application for interim relief

Holding

The court held that a joint affidavit by two deponents is incompetent; only an affidavit sworn by one deponent competently supports an application for interim reliefs, and the defect is not excusable under Article 159(2)(d)

Reasoning

Relying on Order 19 of the Civil Procedure Rules, the Indian Code of Civil Procedure Order 19 Rule 7, the Supreme Court Practice 1997 and the authorities of Francis Kariu Gakumbi and Pastor John Cheruiyot, the court reasoned that an affidavit is sworn evidence of personal knowledge which each deponent must affirm paragraph by paragraph, which two persons cannot jointly do. Being an environment matter, the court held the defect substantive rather than a mere technicality.

p. 10
02

Whether the signatures on the supporting affidavit conformed to legal standards

Holding

The court observed that the 2nd Plaintiff's signature on the Notice of Withdrawal differed from that on the supporting affidavit, reinforcing its finding of illegality

Reasoning

The court, while cautioning that it was not a document examiner, compared the signature on the Notice of Withdrawal filed by the 2nd Plaintiff with the signature on the supporting affidavit and found them different. It reasoned that proceeding to determine the application despite this discrepancy would make the court complicit in the illegality, warranting striking out the application without examining the merits.

p. 11
03

Who should bear the costs of the application

Holding

Costs were awarded to the Defendant/Respondent following the principle that costs follow the event under Section 27(1) of the Civil Procedure Act

Reasoning

The court applied Section 27(1) of the Civil Procedure Act and the Supreme Court decisions in Jasbir Rai Singh and Cecilia Karuru Ngayo, holding that costs follow the event and the successful party is entitled to costs absent exceptional circumstances. Since the application was struck out, the Defendant as the successful party was awarded costs.

p. 11

Legal principles established

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  • The only competent affidavit in support of an application seeking interim reliefs is one sworn by a single deponent; a joint affidavit by two deponents is incompetent and cannot be saved as a procedural technicality under Article 159(2)(d) of the Constitution
  • Where a court finds that proceeding with an application would amount to complicity in an illegality, it should not determine the application on its merits

Court orders

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  1. 1.The Notice of Motion application dated 2nd December, 2024 be and is hereby found to be fatally defective and the same is struck out
  2. 2.The matter to be mentioned on 14th February, 2025 before Hon. Justice Mr. Olola for further direction on conducting a Pre-Trial conference pursuant to Order 11 of the Civil Procedure Rules, 2010 and taking a hearing date of the suit
  3. 3.The Defendant/Respondent shall have the costs of the Notice of Motion application dated 2nd December, 2024 to be borne by the Plaintiff/Applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10(2); Article 159(2)(d)
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A, 27(1), 82
  • Civil Procedure Rules, 2010Order 40 Rules 1(a), 2, 3 and 4; Order 19 Rules 3(1), 5 and 7; Order 11
  • Oaths and Statutory Declarations Act, Cap 15General
  • Evidence Act, Cap 80General (admissibility of electronically signed documents)
  • Interpretation and General Provisions Act, Cap 2General
  • Environmental Management and Coordination ActGeneral (EMCA licensing)
  • Land ActGeneral
  • High Court (Practice and Procedure) RulesSection 3(2)
  • Indian Code of Civil Procedure (Allahabad)Order 19 Rule 7
  • The Supreme Court Practice 1997Order 41 Rule 2

Cases cited (6)

  • Francis Kariu Gakumbi & Another v Piliska Njoki Maina
    [2008] eKLR
  • Pastor John Cheruiyot & 6 others v County Council of Baringo & 3 others
    Nakuru HCCC No. 120 of 2004 (unreported)
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others
    [2013] eKLR
  • Jasbir Rai Singh v Tarchalan Singh
    eKLR (2014)
  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited
    eKLR (2014)
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 and Order 40 Rules 1(a), 2 and 4 of the Civil Procedure Rules, 2010

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, "Alem & another (Both Suing on Behalf of themselves and on Behalf of the Landlords and Tenants of Migadini Kipevu Area at Chaani) v Focus Container Freight Stations Limited; National Environment Management Authority (Interested Party) (Environment and Planning Civil Case E016 of 2024) [2025] KEELC 292 (KLR)", Case Analysis (2025). Notice of Motion dated 2nd December 2024 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/292/eng@2025-01-31

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