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ELCOtherApplication dated 18 December 2025 (in suit concerning Kisii Municipality/Block III/240)· [2025] KEELC 3151 (KLR)

Mariera & another v Ongwacho & 2 others (Environment & Land Case 305 of 2016) [2025] KEELC 3151 (KLR)

Environment and Land Court
2 April 2025
MSMunyao Sila
1,683 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck down a bid to jail a judgment debtor because the lawyer, not the client, swore the supporting affidavit.

What this practically means

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Executive summary

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The plaintiffs applied by notice dated 18 December 2024 for the 1st defendant's committal to civil jail for failure to comply with a judgment delivered on 9 November 2023, in which the court declared the plaintiffs owners of Kisii Municipality/Block III/240, issued a permanent injunction, granted them possession, and awarded general damages of Kshs. 5,000,000 with costs. The application was supported by an affidavit sworn by Mr. Kelvin Mogeni, the plaintiffs' advocate on record, deposing to non-compliance and personal service of the judgment and decree. The 1st defendant opposed, contending the advocate's affidavit was irregular as it deposed to facts outside his knowledge, that the application was premature, and that committal required compliance with Section 38 of the Civil Procedure Act and should proceed by notice to show cause under Order 22 Rule 6. The court held that advocates should refrain from swearing affidavits except on facts strictly within their knowledge, and that the selection of a mode of execution is the litigant's decision, to be deposed by the litigant. Only the affidavit of service was unobjectionable, counsel having sworn it as process server. The affidavit was struck out, leaving the application unsupported; the application was also struck out. The court declined to award costs since the defendant had still not complied with the judgment, and expressly made no finding on the merits.

Key legal issues

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01

Competence of an affidavit sworn by an advocate on record in support of an execution application

Holding

The affidavit was incompetent and was struck out

Reasoning

The court held that the choice of mode of execution belongs to the litigant, who must depose whether the decree has been satisfied and why a particular mode was chosen. Counsel's affidavit on these contested facts improperly placed the advocate as a potential witness. Only the affidavit of service survived, since counsel swore it as the person who effected service.

p. 4
02

Consequence of striking out the supporting affidavit

Holding

With the affidavit struck out, the application remained unsupported and was also struck out

Reasoning

Once the supporting affidavit fell, the application had no foundation and could not proceed. The court expressly declined to consider the merits, so the committal question remains open and may be re-invoked on a properly supported application.

p. 4

Legal principles established

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  • An advocate should refrain from swearing affidavits except on facts strictly within his knowledge and which cannot be within his client's knowledge; it should be a last resort.
  • The selection of the mode of execution is the litigant's choice, and the affidavit in support must be sworn by the litigant.

Court orders

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  1. 1.The supporting affidavit sworn by Kelvin Mogeni is struck out
  2. 2.The application dated 18 December 2025 is struck out as unsupported
  3. 3.No orders as to costs - each party to bear own costs of the application
  4. 4.The court has not considered the merits or demerits of the application

Authorities

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Legislation

  • Civil Procedure ActSection 38
  • Civil Procedure RulesOrder 22 Rule 6
Jurisdiction invoked
Original land jurisdiction of the Environment and Land Court; execution of decree under the Civil Procedure Act (Section 38) and Order 22 Rule 6 raised

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, "Mariera & another v Ongwacho & 2 others (Environment & Land Case 305 of 2016) [2025] KEELC 3151 (KLR)", Case Analysis (2025). Application dated 18 December 2025 (in suit concerning Kisii Municipality/Block III/240). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3151/eng@2025-04-02

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