Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNot stated in the judgment· [2025] KEELC 5145 (KLR)

Mwandi v Songe (Environment and Land Miscellaneous Case E005 of 2025) [2025] KEELC 5145 (KLR)

High Court
10 July 2025
EOE. O. Obaga
1,276 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out an application because the plaintiff's own lawyer commissioned its supporting affidavit, which the law forbids.

What this practically means

#

Executive summary

#
This ruling by Hon. E. O. Obaga, Judge, decided a preliminary objection dated 25th February 2025 raised by the Defendant/Respondent against a Notice of Motion dated 18th December 2024 filed contemporaneously with a plaint by the Plaintiff, Boniface Makau Mwandi, seeking similar reliefs to those in the plaint. Of the four grounds raised, the court addressed only ground 3: that the application violated Section 4(1) of the Oaths and Statutory Declarations Act. The court observed that the pleadings, including the Notice of Motion, were drawn by Dola Indidis of the firm Dola Magani & Co. Advocates, and that the same Dola Indidis commissioned the supporting affidavit - conduct prohibited by the proviso to Section 4(1), which bars a commissioner for oaths from acting in a matter in which he is the advocate for a party or is interested. Relying on James Francis Kariuki v United Insurance Co. Ltd and Caltex Oil (Kenya) Ltd v New Stadium Services Station Ltd, both decisions of Onyango Otieno J, the court held such an affidavit is not a mere irregularity curable under Article 159 of the Constitution. The Respondent's reliance on Kaiser Investments Ltd v Hua Run Co. Ltd, which concerned affidavits sworn before a different advocate in the same firm, was rejected as inapposite. The court struck out the supporting affidavit as incompetent, leaving the Notice of Motion bare and incapable of granting any orders, struck out the Notice of Motion itself, and awarded costs to the Defendant/Respondent. The underlying suit was not determined.

Key legal issues

#
01

Whether the supporting affidavit commissioned by the deponent's own advocate is incurably defective

Holding

Yes. The affidavit was drawn and commissioned by Dola Indidis, the advocate on record, contrary to the proviso to Section 4(1) of the Oaths and Statutory Declarations Act, rendering it incompetent and leaving the Notice of Motion without evidentiary support.

Reasoning

The court found from the pleadings that Dola Indidis of the firm Dola Magani & Co. Advocates drew the pleadings and also commissioned the supporting affidavit. The proviso to Section 4(1) bars a commissioner for oaths from exercising those powers in a matter in which he is the advocate for a party or is interested. Relying on James Francis Kariuki and Caltex Oil, the court held this is not a mere irregularity curable under Article 159, and distinguished Kaiser Investments, which concerned affidavits sworn before a different advocate in the same firm. The affidavit was struck out, leaving the Notice of Motion bare.

p. 3

Legal principles established

#
  • An affidavit sworn before the advocate who drew the pleadings in the same matter offends the mandatory proviso to Section 4(1) of the Oaths and Statutory Declarations Act and is incompetent; such a defect is not a mere technicality curable under Article 159 of the Constitution

Court orders

#
  1. 1.The supporting affidavit to the Notice of Motion is struck out as incompetent
  2. 2.The Notice of Motion dated 18th December, 2024 is struck out
  3. 3.Costs of the preliminary objection to the Defendant/Respondent
Jurisdiction invoked
Original civil jurisdiction; matter filed with a plaint and Notice of Motion (court file opened under miscellaneous application; suit headed for the Chief Magistrate's Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Mwandi v Songe (Environment and Land Miscellaneous Case E005 of 2025) [2025] KEELC 5145 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5145/eng@2025-07-10

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