Lund-Henriksen & another (Suing as Administrators of the Estate of Philp Denis Nagenda Wilson) v Directorate of Criminal Investigations & 3 others; Kabaria & 3 others (Interested Parties) (Environment & Land Petition E065 of 2024) [2025] KEELC 3387 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a case because affidavits sworn in Norway had exhibits improperly sealed by a Kenyan commissioner for oaths.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Motion is competent
- 2.If competent, whether the Petitioners/Applicants are entitled to the orders sought herein
Key legal issues
#Whether the Preliminary Objection on the competency of the supporting affidavits and exhibits met the Mukisa Biscuits threshold
It did - the objections were pure questions of law on the admissibility and validity of affidavits and annexures
Applying the classic tests in Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors as reaffirmed in Hassan Ali Joho, the court found there was no factual dispute as to the contents of the affidavits or the manner of notarization; the objections concerned whether the exhibits complied with the Oaths and Statutory Declarations Act and Rules and the Evidence Act, making them purely legal and suitable for determination as a preliminary objection.
Whether affidavits sworn in Norway (a non-Commonwealth country) satisfied Section 88 of the Evidence Act
The affidavits themselves were sufficiently authenticated - the Norwegian Notary Public, Ingrid Flom, certified the deponent's signature under Norwegian law and they bore her signature and seal
Following Peeraj General Trading and Lakeview Development, documents from non-Commonwealth jurisdictions lack the statutory presumption of authenticity and must be proved. On inspection, the jurat showed the Notary Public certified the signature as required by Norwegian law and affixed her signature and seal, so the affidavits themselves met the authentication standard of Section 88 of the Evidence Act.
Whether the exhibits annexed to the affidavits complied with Rules 9 and 10 of the Oaths and Statutory Declarations Rules
They did not - the annexures were sealed by a Kenyan commissioner for oaths on the same date the affidavits were sworn and notarized in Norway, a legal impossibility, and were expunged
Rules 9 and 10 require all exhibits to be securely sealed under the seal of the commissioner and marked with serial letters of identification. Here a Kenyan commissioner purported to seal exhibits to affidavits neither sworn nor commissioned before them. The court held this safeguard is not a mere formality but crucial to authenticity and probative value, refused to invoke Article 159(2)(d) to cure it per Nicholas Kiptoo Arap Korir Salat, and expunged the exhibits.
The consequence of expungement for the Motion
The affidavits became bare, with fatal consequences for the Motion, which was struck out; the Petitioners may file fresh compliant affidavits and exhibits
With the exhibits removed, the Supporting Affidavits lost all evidentiary anchorage. The Further Affidavit could not cure the defect as it merely replicated the initial affidavit. The court declined to determine the substantive issues, held the grounds of opposition moot, struck out the Motion with costs, but allowed the Petitioners an opportunity to rectify their pleadings since the Petition itself had not yet been prosecuted.
Legal principles established
#- Affidavits sworn outside the Commonwealth must be proved or authenticated by evidence of the Notary Public's signature and seal; the court presumes authenticity only for documents admissible in England under Section 88 of the Evidence Act
- A commissioner for oaths in Kenya cannot lawfully seal exhibits annexed to an affidavit sworn and notarized in a foreign jurisdiction
- Proper marking, sealing and attestation of exhibits is a substantive safeguard, not a curable technicality under Article 159 of the Constitution or Order 19 Rule 7 of the Civil Procedure Rules
- A Further Affidavit cannot be used to cure fundamental defects in the original Supporting Affidavit
Court orders
#- 1.The Preliminary Objection of 28th October, 2024 partly succeeds to the extent that the Notice of Motion dated 9th August, 2024 be and is hereby struck out with costs
- 2.The Petitioners are at liberty to rectify their pleadings; they may file fresh affidavits and exhibits complying with the requisite statutory and evidentiary requirements
- 3.The grounds of opposition are rendered moot following the success of the Preliminary Objection
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitutional petition (Bill of rights reliefs) with interlocutory Notice of Motion under Sections 1, 1A of the Civil Procedure Act and Section 134 of the Evidence Act; original jurisdiction
Relief refused
#Injunction restraining the 1st and 2nd Respondents from investigating, summoning, arresting or charging the Petitioners and Interested Parties
Motion struck out as incompetent after the supporting affidavits' exhibits were expunged, leaving the affidavits bare
Order of prohibition against demanding advocate-client correspondence
Same fate - Motion struck out
Temporary injunction restraining the 1st Interested Party from interfering with L.R No 1/414 and order for disclosure of transactions
Same fate - Motion struck out
Costs
Motion struck out with costs (costs of the Motion awarded against the Petitioners in favour of the objectors)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
i. The Preliminary Objection of 28th October, 2024 partly succeeds to the extent that the Notice of Motion dated 9th August, 2024 be and is hereby struck out with costs.
This presents a legal inconsistency, as it is impossible for a commissioner in Kenya to lawfully seal annexures that are attached to an afidavit sworn and notarized in a foreign jurisdiction.
The requirement for properly marking, sealing, and attesting to annexures is not a mere formality, but a crucial safeguard that guarantees the authenticity and probative value of documentary evidence.
the court does not consider that the same is in the nature of a defect in form as alluded to in Order 19 Rule 7 of the Civil Procedure Rules, neither is it curable by virtue of Article 159 of the Constitution.
It is not intended to serve as a substitute for the initial Supporting Afidavit, nor can it be used to cure fundamental defects in the original afidavit.
it is the finding of the court that there has been suficient authentication and the afidavits satisfy the requirements of Sections 88 of the Evidence Act.
Issues in the judgment
#Paragraph numbering is defective: after paragraph 42 the next numbered paragraph appears as '1.' before paragraph 45, breaking the sequence
The judgment refers to 'the application of July 13th, 2020' when the Motion before the court is dated 9th August, 2024
The 1st Petitioner's surname is inconsistently rendered as 'Lund-Henriksen' and 'Lund-Henderson'
The 1st Interested Party's name is inconsistently given as 'Alice Wambui Kabaria' in the prayers and 'Alice Wairimu Kabaria' in prayer (iii)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lund-Henriksen & another (Suing as Administrators of the Estate of Philp Denis Nagenda Wilson) v Directorate of Criminal Investigations & 3 others; Kabaria & 3 others (Interested Parties) (Environment & Land Petition E065 of 2024) [2025] KEELC 3387 (KLR)", Case Analysis (2025). Not stated in the judgment (Petition seeking constitutional reliefs; Notice of Motion dated 9th August, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3387/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.