Dardanelli & 6 others v Tilito & 3 others (Land Case E041 of 2024) [2025] KEELC 392 (KLR)
The bottom line
#A Kenyan court struck out companies' attempt to move a villa dispute to arbitration because their supporting affidavit was sworn without the deponent appearing before a commissioner for oaths.
What this practically means
#Executive summary
#Key legal issues
#Authority of a director to swear a supporting affidavit for the company
The objection failed: the 1st defendant was shown to be a director of the 2nd defendant and, applying Arthi Highway Developers, no board resolution is needed for a director to authorize the swearing of an affidavit.
The court relied on Arthi Highway Developers Ltd v West End Butchery Ltd, which held that the Bugerere Coffee Growers rule requiring board resolutions had been overruled in Uganda (United Assurance Co Ltd v Attorney General) and applied in Kenya (Fubeco China Fushun v Naiposha). Since a director may instruct counsel to file suit, he can a fortiori authorize the lesser act of swearing a supporting affidavit. No contrary evidence from other directors or shareholders was presented.
Validity of an affidavit not commissioned with the deponent physically before the commissioner for oaths
Such an affidavit is defective; absent a section 106B Evidence Act certificate proving any electronic commissioning, it must be struck out.
The defendants admitted the deponent was abroad on the purported swearing date. Section 5 of the Oaths and Statutory Declarations Act requires the commissioner to state truly the place and date of the oath, so commissioning in the deponent's absence produces a falsehood. The alleged virtual commissioning was supported only by counsel's submissions, which are not evidence, and no section 106B certificate was furnished to prove the electronic record of the online interaction. The defect was therefore fatal to the affidavit and to the notice of application it supported.
Whether the suit should be stayed and referred to arbitration under section 6 of the Arbitration Act
Not determined on the merits; the application was struck out for want of a valid supporting affidavit, with leave to re-file.
Although the applicants invoked section 6 of the Arbitration Act and authorities such as Niazsons (K) Ltd v China Road & Bridge Corporation and William Muthee Muthami v Bank of Baroda, the court could not reach the arbitration question because the impugned application could not stand without a supporting affidavit. Recognizing the centrality of the arbitration issue, the court granted leave to file a fresh, properly supported application within 21 days.
Legal principles established
#- A director does not require a board resolution to authorize an advocate to swear an affidavit in support of an application on behalf of the company, unless the contrary is shown
- A deponent must appear before the commissioner for oaths when an affidavit is commissioned; commissioning an affidavit in the deponent's absence is a serious irregularity
- Where an affidavit is procured through electronic means, it is proper only if accompanied by the appropriate certificate under section 106B of the Evidence Act; submissions from the bar cannot substitute for such proof
Court orders
#- 1.Struck out the supporting affidavit of Pasquale Tirito dated May 23, 2024
- 2.Struck out the 1st and 2nd defendants' application dated May 23, 2024 (as it cannot stand without a supporting affidavit)
- 3.Granted the applicants leave to file a fresh application in the proper manner, supported by a proper affidavit, within 21 days
- 4.Costs of the application to the plaintiffs
- 5.Mentioned the matter on February 27, 2025 for further directions
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; Arbitration Act 1995 (section 6) invoked for stay pending arbitration
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (9)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Pepo Huru Lifestyle Ltd v Bertoni & another[2026] KEELC 6140 (KLR)1 Oct 2026applied
- Achieng v Atinga & 3 others (Environment and Land Appeal 1 of 2023) [2026] KEELC 3724 (KLR)[2026] KEELC 3724 (KLR)12 Jun 2026followed
- Ngeno & 2 others v Ngeno & another (Environment and Land Appeal E002 of 2021) [2026] KEELC 2601 (KLR)[2026] KEELC 2601 (KLR)30 Apr 2026
- Ngeno & 2 others v Ngeno & another (Environment and Land Appeal E002 of 2021) [2026] KEELC 2601 (KLR)[2026] KEELC 2601 (KLR)30 Apr 2026followed
- Integrity Security Group (EA) Ltd v Simiyu t/a Silk Sports Lounge (Civil Suit E013 of 2025) [2026] KEMC 680 (KLR)[2026] KEMC 680 (KLR)16 Apr 2026followed
- Cockar & another v Bano & 7 others (Environment and Land Case E292 of 2025) [2026] KEELC 1583 (KLR)[2026] KEELC 1583 (KLR)19 Mar 2026
- Clifton Bay Limited v Chivatsi (As the administrator of the Estate of Jefwa Kalama Lewa - Deceased) & 2 others (Environment and Land Appeal E001 of 2024) [2026] KEELC 704 (KLR)[2026] KEELC 704 (KLR)10 Feb 2026applied
- Ikigu v Muchina (Sued on Behalf of Gitau Muchina) & another (Environment and Land Appeal E045 of 2025) [2025] KEELC 8090 (KLR)[2025] KEELC 8090 (KLR)21 Nov 2025
- Lund-Henriksen & another (As Administrators of the Estate of Philp Denis Nagenda Wilson) v Kabaria & 2 others (Environment & Land Case E320 of 2021) [2025] KEELC 3386 (KLR)[2025] KEELC 3386 (KLR)27 Mar 2025considered
Cite this brief
#Cite this brief
Caselaw, "Dardanelli & 6 others v Tilito & 3 others (Land Case E041 of 2024) [2025] KEELC 392 (KLR)", Case Analysis (2025). Land Case E041 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/392/eng@2025-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.