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ELCPartially AllowedLand Case E041 of 2024· [2025] KEELC 392 (KLR)

Dardanelli & 6 others v Tilito & 3 others (Land Case E041 of 2024) [2025] KEELC 392 (KLR)

Environment and Land Court
6 February 2025
5,216 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (Mwangi Njoroge, J) delivered on February 6, 2025 on an application by the 1st and 2nd defendants seeking a stay of proceedings and referral of the dispute to arbitration under clause 5.4 of long-term lease agreements and section 6 of the Arbitration Act. The plaintiffs, who hold leases over villas formerly on Plot No 1114 (now Plot No 2091), opposed the application, contending there was no valid agreement over Plot 2091, that the leases were void for contravening Article 65 of the Constitution, and attacking the supporting affidavit of the 1st defendant both for want of authority and because it purportedly was sworn in Nairobi while the deponent was abroad. The court declined to delve into the substantive disputes, holding they were matters for trial. On authority, applying Arthi Highway Developers Ltd v West End Butchery Ltd, it held that a director needs no board resolution to authorize the swearing of a supporting affidavit and dismissed that objection. However, it found the affidavit fatally defective: the defendants admitted the deponent did not appear before the commissioner for oaths, and the alleged virtual commissioning was unsupported by evidence or a certificate under section 106B of the Evidence Act. The court struck out the supporting affidavit and, consequently, the entire application, with costs, while granting the applicants leave to file a fresh, properly supported application within 21 days, and directed mention on February 27, 2025. The merits of the arbitration question were therefore not decided.

Key legal issues

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01

Authority of a director to swear a supporting affidavit for the company

Holding

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.

Reasoning

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.

p. 9
02

Validity of an affidavit not commissioned with the deponent physically before the commissioner for oaths

Holding

Such an affidavit is defective; absent a section 106B Evidence Act certificate proving any electronic commissioning, it must be struck out.

Reasoning

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.

p. 14
03

Whether the suit should be stayed and referred to arbitration under section 6 of the Arbitration Act

Holding

Not determined on the merits; the application was struck out for want of a valid supporting affidavit, with leave to re-file.

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 1.Struck out the supporting affidavit of Pasquale Tirito dated May 23, 2024
  2. 2.Struck out the 1st and 2nd defendants' application dated May 23, 2024 (as it cannot stand without a supporting affidavit)
  3. 3.Granted the applicants leave to file a fresh application in the proper manner, supported by a proper affidavit, within 21 days
  4. 4.Costs of the application to the plaintiffs
  5. 5.Mentioned the matter on February 27, 2025 for further directions

Authorities

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Legislation

  • Arbitration Actsection 6
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 65
  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure RulesOrder 19 rules 3 and 7; Order 51 rule 2
  • Oaths and Statutory Declarations Actsection 5
  • Evidence Actsection 106B
  • Kenya Information and Communications Actnot specified

Cases cited (18)

  • Makupa Transit Shade Limited & Another v Kenya Ports Authority & Another
    2015 eKLR
  • Spire Bank Ltd v Land Registrar & 2 Others
    2019 eKLR
  • Panchal Trading K Ltd v NF Metals Corporation
    2021 eKLR
  • Niazsons (K) Ltd v China Road & Bridge Corporation
    2001 eKLR
  • William Muthee Muthami v Bank of Baroda
    2014 eKLR
  • Namasthethu Electrical (Pty) Ltd v City of Cape Town & another
    Case No 201/19 [2020] ZASCA 74 (29 June 2020)
  • County Government of Kirinyaga v African Banking Corporation Ltd
    2020 eKLR
  • Casside v Peter Kimani Kairu, Directorate of Immigration Services and another
    Civil Suit No 39 of 2007 [2022] KEHC 474 (KLR)
  • Laikipia University College v Kibia
    Civil Appeal E0022 of 2023 [2023] KEHC 26705 (KLR)
  • Al Alyaan Motors Ltd & another v Ngala
    Civil Appeal E191 of 2021 [2023] KEHC 19745 (KLR)
  • Cliffton Bay Limited v Dama Nguwa Chivatsi (Suing as the administrator of the estate of Jefwa Kalama Lewa – Deceased) and others
    Malindi ELC Appeal No E001 of 2024
  • Arthi Highway Developers Limited v West End Butchery Limited & others
    Nairobi Civil Appeal No 246 of 2013 [2015] eKLR
  • Bugerere Coffee Growers Ltd v Sebaduka & Anor
    [1970] 1 EA 147
  • Tatu Naiga & Emporium v Virjee Brothers Ltd
    Civil Appeal No 8 of 2000
  • United Assurance Co Ltd v Attorney General
    SCCA No 1 of 1998
  • Fubeco China Fushun v Naiposha Company Limited & 11 others
    [2014] eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
  • Samwel Kazungu Kambi v Nelly Ilongo & 2 others
    [2017] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; Arbitration Act 1995 (section 6) invoked for stay pending arbitration

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.