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ELCDismissedApplication dated 10th June 2025 (arising from an appeal decided 18th March 2024; associated Isiolo CMELC No. 96 of 2018 and Nyeri Civil Appeal No. E077 of 2024)· [2025] KEELC 4813 (KLR)

Kamoro v Waweru (Environment and Land Appeal E010 of 2023) [2025] KEELC 4813 (KLR)

Environment and Land Court
26 June 2025
2,975 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a landowner's bid to pause enforcement because his lawyer improperly swore his affidavit and he waited 15 months too long.

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 Isiolo (Oguttu Mboya, J) delivered on 26th June 2025 on an application dated 10th June 2025 seeking stay of execution of the court's judgment of 18th March 2024 (which had dismissed the applicant's appeal) and of the Isiolo CMELC No. 96 of 2018 judgment of 30th May 2023, pending appeal Nyeri Civil Appeal No. E077 of 2024. The court framed four issues. First, the supporting affidavit sworn by the applicant was commissioned by Mr. Shafin W.O Kaba, an advocate connected with the applicant's own law firm, M/s M.D Maranya & Co. Advocates, contrary to the proviso to section 4 of the Oaths and Statutory Declarations Act, which prohibits a commissioner for oaths from acting in matters in which he is the advocate or is interested. The affidavit was held invalid, illegal and void and was expunged, leaving the application without evidential anchorage and defective. Second, the judgment sought to be stayed had dismissed the appeal, producing a negative decree incapable of being stayed; further, the subordinate court's decree granted only a permanent injunction, not an eviction, and could not mutate into an eviction order. Third, the application was filed over 15 months after judgment, an ex facie grossly unreasonable and unexplained delay, defeating it under the doctrine of laches. Fourth, execution for recovery of costs, being monetary, cannot occasion substantial loss and is not stayable absent exceptional circumstances. The application was dismissed with costs to the respondent, to be agreed or taxed by the Deputy Registrar.

Key legal issues

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01

Validity of in-house commissioned affidavit

Holding

The supporting affidavit commissioned by an advocate associated with the applicant's law firm was invalid and was expunged, leaving the application without evidential anchorage

Reasoning

The court found Mr. Shafin Kaba, who commissioned the affidavit, was a partner, associate or otherwise connected to M/s M.D Maranya & Co. Advocates acting for the applicant and had canvassed the application. The proviso to section 4 of the Oaths and Statutory Declarations Act prohibits a commissioner for oaths from acting in matters in which he is the advocate or is interested. Such an affidavit is illegal and void.

p. 4
02

Whether a negative decree can be stayed

Holding

A negative decree arising from dismissal of an appeal cannot attract a stay of execution

Reasoning

The court's judgment of 18th March 2024 dismissed the applicant's appeal, producing no command to do or abstain from anything. The subordinate court had granted only a permanent injunction, not an eviction order, and such a decree cannot mutate into an eviction order warranting stay. The application was therefore mounted in a vacuum.

p. 4
03

Inordinate delay and laches

Holding

The application, filed over 15 months after the judgment, was grossly delayed, unexplained and defeated by laches

Reasoning

The judgment was delivered on 18th March 2024 but the application was filed on 10th June 2025, over 15 months later. The applicant offered no explanation for the delay, not even a single paragraph. Equity aids the vigilant, not the indolent, and the delay was intentional and deliberate.

p. 5
04

Stay of execution for costs

Holding

Execution for recovery of costs cannot be stayed absent peculiar and exceptional circumstances

Reasoning

Costs are consequential orders that follow the event under section 27 of the Civil Procedure Act. Being monetary in nature, their payment cannot without more occasion substantial loss, and execution is a lawful process under Order 22 of the Civil Procedure Rules which cannot be said to prejudice the adverse party.

p. 5

Legal principles established

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  • In-house commissioning of affidavits by an advocate connected with the drafting law firm contravenes section 4 of the Oaths and Statutory Declarations Act and renders the affidavit invalid
  • A negative decree from the dismissal of an appeal cannot attract an order of stay of execution
  • Costs being monetary in nature, their payment does not occasion substantial loss and execution for costs is not stayable absent exceptional circumstances

Court orders

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  1. 1.The supporting affidavit sworn on 10th June 2025 and commissioned by Mr. Shafin Kaba advocate is expunged from the record
  2. 2.The Application dated 10th June 2025 be and is hereby Dismissed
  3. 3.Costs of the Application be and are hereby awarded to the Respondents
  4. 4.Costs in terms of clause (ii) shall be agreed upon; and in default be taxed by the Deputy Registrar

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21, Laws of Kenyasections 1A, 1B, 3B, 27
  • Civil Procedure Rules 2010Order 42 rules 6; Order 51 rules 1 & 2; Order 22
  • Oaths and Statutory Declarations Act, Cap 15, Laws of Kenyasection 4
  • Constitution of Kenya 2010Article 159(2)(b)

Cases cited (9)

  • Western College of Applied Science & Technology vs Oranga
    (1976) eKLR
  • Charles Barongo Nyakeri vs The County Government of Kisii
    (2020) eKLR
  • Oliver Collins Wanyama vs The Engineering Regulatory Board
    (2019) eKLR
  • Kaushik Panchamatia & 3 others v Prime Bank Limited & another
    [2020] KECA 418 (KLR)
  • The Registered Trustees, Kenya Railways Pension Benefit Staff Scheme vs Milimo Muthomi & Co. Advocates
    (2022) KECA
  • Andrew Chemaringo vs Paul Kipkorir Kiplagat
    (2018) eKLR
  • Chief Land Registrar & others vs Nathan Tirop Koech & Others
    (2019) eKLR
  • Kenya Shell Limited versus Kibiru
    [1986] eKLR
  • Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 Others
    [2014] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3B of the Civil Procedure Act; Order 42 rules 6 and Order 51 rules 1 & 2 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kamoro v Waweru (Environment and Land Appeal E010 of 2023) [2025] KEELC 4813 (KLR)", Case Analysis (2025). Application dated 10th June 2025 (arising from an appeal decided 18th March 2024; associated Isiolo CMELC No. 96 of 2018 and Nyeri Civil Appeal No. E077 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4813/eng@2025-06-26

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