Musa & 6 others (Suing on the own behalf and on behalf of Mwakirunge Residents upon the suit property/Plot No CR 345 numbering 366 Individuals) v Hassan & 4 others (Environment and Land Case 133 of 2015) [2025] KEELC 7299 (KLR)
The bottom line
#A Kenyan land court refused to delay a ten-year-old case's judgment, ruling that late amendments and defective affidavits cannot reopen concluded litigation.
What this practically means
#Executive summary
#Key legal issues
#Defective commissioning of affidavits
An affidavit whose jurat or commissioning is defective is fatally defective and cannot support a Notice of Motion; both supporting and replying affidavits similarly defective are struck out
Section 5 of the Oaths and Statutory Declarations Act requires the Commissioner for Oaths to state truly in the jurat the place and date the affidavit is taken. Case law requires the deponent and Commissioner to be physically present at the same place and time. Where the jurat states one place and the stamp another, the affidavit is irregular and unacceptable and must be struck out, leaving the application unsupported.
Jurisdiction to arrest judgment in civil suits
There is no express provision for arrest of judgment in civil practice; the court retains only residual inherent jurisdiction to stay its own judgment in rare, exceptional circumstances of manifest injustice or fraud
Arrest of judgment is expressly provided only in Section 324 of the Criminal Procedure Code. In civil matters, the proper routes are review under Section 80 of the Civil Procedure Act and Order 45, amendment under Order 8, or appeal after delivery. The inherent jurisdiction to arrest a pre-delivery judgment exists only in the rarest of cases and was not satisfied here.
Leave to amend pleadings after hearing and before judgment
Leave refused: the amendment sought a decade later, after full hearing, introduces new property numbers substantially altering the suit's character, is unexplained, barred by limitation, and prejudicial
The power to amend under Section 100 of the Civil Procedure Act and Order 8 Rules 3 and 5 is liberal but not without limits. Amendments at the doors of judgment are suspect and allowed only in the clearest of cases. Where the amendment introduces a new or inconsistent case at the eleventh hour with no satisfactory explanation, and prejudice cannot be cured by costs, it must be refused.
Prejudice to the Respondents
The Respondents would suffer substantial prejudice if judgment were arrested and the suit reopened, given over ten years of litigation and their legitimate expectation of finality
The touchstone is whether the other party can be compensated by costs or whether injustice is irreparable. Here allowing the amendment would deprive the Respondents of accrued defences under the Limitation of Actions Act, necessitate reopening the trial, and occasion further delay contrary to the maxim that litigation must come to an end.
Costs
The court exercised its discretion to make no order as to costs
Costs follow the event under the proviso to Section 27(1) of the Civil Procedure Act, but the court retained discretion; despite the dismissal of the application, it declined to award costs to any party.
Legal principles established
#- An ELC trial court has only limited, residual jurisdiction to stay its own judgment prior to pronouncement, in the rarest of cases to prevent manifest injustice
- An application not supported by a competent affidavit is not properly before the court
- Late amendments are permitted only if made in good faith, do not introduce a new or inconsistent cause, and the other party can be compensated by costs
Court orders
#- 1.The Notice of Motion Application dated 10th June, 2025 be and is hereby found to lack merit and the same is disallowed with no orders as to costs.
- 2.Any defective supporting or replying affidavits be and are hereby struck out.
- 3.The order of stay of judgment previously granted is lifted; the Court's Judgment in ELC Case No. 133 of 2025 shall be delivered forthwith on 31st October, 2025.
- 4.There shall be no orders as to costs.
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 63(c) and (e) of the Civil Procedure Act, Cap. 21; Order 8 Rule 3 and Order 21 Rule 25 of the Civil Procedure Rules, 2010
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, "Musa & 6 others (Suing on the own behalf and on behalf of Mwakirunge Residents upon the suit property/Plot No CR 345 numbering 366 Individuals) v Hassan & 4 others (Environment and Land Case 133 of 2015) [2025] KEELC 7299 (KLR)", Case Analysis (2025). ELC Case No. 133 of 2015 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7299/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.