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ELCAllowedOriginating Motion dated 17 July 2024 (EACC application, Kisii)· [2025] KEELC 385 (KLR)

Ethics and Anti-Corruption Commission v Haria & another (Environment and Land Miscellaneous Application E016 of 2024) [2025] KEELC 385 (KLR)

Environment and Land Court
6 February 2025
1,715 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's EACC froze a Kisii land title for six months while investigating suspected corrupt acquisition, and the court set clear rules on amending affidavits.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission moved the Environment and Land Court at Kisii by an amended Originating Motion under Section 56 of the Anti-Corruption and Economic Crimes Act, seeking prohibition of any dealing with land parcel Kisii Municipality/Block II/127 for six months. EACC deposed, through investigator Augustine Mukwekewe, that the suit property was exchanged with Government Plot Kisii Municipality/Block II/140, was irregularly and fraudulently transferred to the 1st respondent, and was then charged to the 2nd respondent, which has advertised it for auction; EACC sought preservation to enable investigations and intended recovery. The 1st respondent raised a preliminary objection that the application was fatally supported by an irregular 'amended affidavit'. The 2nd respondent, through Faith Ndonga, maintained it was an innocent chargee that undertook due diligence before taking security. Munyao Sila J held that an affidavit cannot be amended since it comprises sworn evidence; the correct course is a supplementary or additional affidavit. The misnomer 'amended supporting affidavit' was, however, treated as a mere technicality with no prejudice caused. An application may be amended to correct clerical errors that do not change its character, and the amendment from Block I to Block II was such a correction. The court declined to determine title, holding that prima facie material suggested the land may have been intended to be surrendered to the Government in exchange for Plot 140. The application was allowed with a six-month prohibition order against dealing with the title; there were no orders as to costs.

Key legal issues

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01

Amendment of affidavits and applications

Holding

An affidavit cannot be amended; the mis-titled 'amended supporting affidavit' was treated as a technicality. An application may be amended only for corrections that do not alter its character.

Reasoning

The court held that amending an affidavit implies the original was falsely sworn; the proper course is a supplementary or additional affidavit. As to applications, minor corrections such as typing errors are permissible without withdrawing the motion, but wholesale amendment of body and prayers requires withdrawal and a fresh application. The correction here (Block I to Block II) was clerical and caused no prejudice.

p. 2
02

Preservation of property suspected of corrupt acquisition

Holding

Prima facie material showing the suit property may have been intended to be surrendered to the Government justified a six-month prohibition order under Section 56.

Reasoning

The court confined itself to whether the EACC had presented material supporting suspicion of corrupt acquisition, avoiding determination of title. Ex parte applications under Section 56 may be directed to be heard inter partes. The material suggesting the land was to be exchanged for Government Plot 140 sufficed to warrant preservation pending investigations.

p. 3

Legal principles established

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  • An affidavit cannot be amended because it comprises evidence; the proper course is to file a supplementary or additional affidavit.
  • An application may be amended to correct errors that do not change the character of the application, such as a clerical mistake.

Court orders

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  1. 1.Order of prohibition prohibiting the respondents from advertising for sale, selling, or in any other way dealing with the title to Plot Kisii Municipality/Block II/127 for six (6) months
  2. 2.No orders as to costs

Authorities

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Legislation

  • Anti-Corruption and Economic Crimes ActSection 56 (1)-(6)

Cases cited (1)

  • Jaribu Credit Traders vs Fidelity Bank Limited & Another
    Commercial Case No. 647/2015 (2024) KEHC 3412
Jurisdiction invoked
Section 56(1) of the Anti-Corruption and Economic Crimes Act, No. 3 of 2003

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, "Ethics and Anti-Corruption Commission v Haria & another (Environment and Land Miscellaneous Application E016 of 2024) [2025] KEELC 385 (KLR)", Case Analysis (2025). Originating Motion dated 17 July 2024 (EACC application, Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/385/eng@2025-02-06

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