Bett & 2 others v Koech & another (Enviromental and Land Originating Summons E010 of 2023) [2025] KEELC 6212 (KLR)
The bottom line
#Kenya's High Court struck out a case because an amended affidavit was used—affidavits cannot be amended, and a summons without a valid affidavit collapses.
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 Preliminary Objection before court meets the threshold of a Preliminary Objection capable of determining the suit in limine?
- 2.Whether the Preliminary Objection is merited?
- 3.What reliefs ought to issue?
- 4.Who bears the costs?
Key legal issues
#Whether the objection raises a pure point of law
Yes - the objection concerns whether a supporting affidavit can be amended, a question of law not requiring ascertainment of facts.
The court held that the form and structure of the supporting affidavit to an amended Originating Summons does not go to the depositions made therein but to whether an affidavit can be amended at all. No evidence need be called; therefore the objection satisfies the Mukisa Biscuit threshold of a pure point of law and qualifies as a proper preliminary objection.
Whether a supporting affidavit to an Originating Summons can be amended
No. Affidavits are depositions - statements of truth on oath - and cannot be amended; the amended supporting affidavit is fatally defective and struck out.
Relying on Eastern & Southern African Devt Bank v African Greenfields Ltd as quoted in Republic v The Resident Magistrates Court Mks & Stephen Maundu Muia, and adopted in Omar & 161 others v National Land Commission, the court reasoned that depositions on oath cannot be amended because the substratum is altered and the deponent cannot re-ascertain and confirm the depositions. The amendment breached the rule that affidavits cannot be amended.
Consequence for the Amended Originating Summons
Without a valid supporting affidavit the Amended Originating Summons is defective and is struck out as well.
Having found the Amended Supporting Affidavit fatally defective and struck out, the court reasoned that the Amended Originating Summons was left without supporting evidence, rendering it defective too. Both the affidavit and the Originating Summons were struck out, with costs to the 1st Respondent.
Legal principles established
#- A preliminary objection must consist of a pure point of law, argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained.
- Depositions being statements of truth on oath cannot be amended; an amended supporting affidavit is fatally defective, and a pleading supported by no valid affidavit falls with it.
Court orders
#- 1.The Preliminary Objection is upheld
- 2.The Amended Supporting Affidavit is struck out as fatally defective
- 3.The Amended Originating Summons is struck out
- 4.Costs to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction; Civil Procedure Rules (Order 19, Order 37) invoked
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.
so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implications out of pleadings, and which if argued as a preliminary objection is in the nature of what used to be a demurrer.
Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.
Depositions being statements of truth on oath cannot be amended as was held in the decision in the case of Eastern & Southern African Devt. Bank v African Greenfileds Ltd
having found that the Amended supporting afidavit is fatally defective and ought to be struck out it follows that the Amended Originating summons has no supporting afidavit rendering it defective too hence it is equally struck out
the Preliminary objection dated 31.3.2025 is hereby upheld and the Amended Originating summons is hereby struck out with costs to the 1st Respondent.
Issues in the judgment
#Contradictory dates for the Preliminary Objection: it is described as dated 30/05/2025 at the outset, but the final order refers to a Preliminary Objection dated 31.3.2025.
Counsel's name and role are confused: 'Ms. Kiprotich' appears for the 1st Defendant at the hearing but is later referred to as 'his submissions' and 'Mr. Kiprotich', and the presence list pairs Mr. Kiprotich with the 2nd Respondent.
The counsel-submissions paragraph for Ms. Kithinji appears garbled/incomplete, omitting the words introducing her submissions.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bett & 2 others v Koech & another (Enviromental and Land Originating Summons E010 of 2023) [2025] KEELC 6212 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6212/eng@2025-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.