Gachuhi v Kamonjoh & another; Thambiri & 4 others (Interested Parties) (Land Case E179 of 2021) [2025] KEELC 7309 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to kill a land suit over a defective affidavit, but struck out a bank joinder bid for wrong documents.
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 suit should be struck out for being incompetent
- 2.Whether the suit should be dismissed for non-compliance of the directions of the court issued on 23/4/25
- 3.Whether the Plaintiff is entitled to orders of joinder of the intended interested party
Key legal issues
#Whether a plaint must be struck out where its verifying affidavit was commissioned by an unqualified person
The verifying affidavit was struck out, but the court declined to strike out the plaint, granting 14 days to file a compliant verifying affidavit in default of which the plaint stands struck out
Order 4 Rule 2 requires a verifying affidavit sworn to verify the plaint's correctness. The Law Society of Kenya letter showed the commissioner was unqualified, rendering the affidavit defective. However, following Microsoft v Mitsumi, D.T. Dobie and Pastificio, procedural lapses not going to jurisdiction or causing fundamental prejudice should not nullify proceedings; Article 50 fair-hearing rights favour sustaining the suit with leave to cure the defect.
Whether the suit should be dismissed for failure to comply with court directions and Order 3 Rule 2
Dismissal was refused; the plaintiff was found non-compliant but the court declined dismissal having spared the suit
The plaintiff had not filed witness statements or a bundle of documents as required by Order 3 Rule 2 and the directions issued earlier. The court acknowledged this non-compliance but, having exercised its discretion to sustain the suit on the affidavit issue, declined to dismiss it, giving the plaintiff an opportunity to cure the verifying affidavit defect instead.
Whether Equity Bank Kenya Limited should be joined as an interested party
The joinder application was unmerited and was struck out
The plaintiff alleged the suit land was charged to the bank, but exhibited a search for LR No 14970/90, which is different and distinct from the suit lands (LR No 1490/90 and LR No 1490/96). Parties are bound by their pleadings and it was incumbent on the plaintiff to present correct documents establishing the nexus between the intended interested party and the suit lands; failing that, no recognisable stake was demonstrated.
Legal principles established
#- Deviations from or lapses in procedure that do not go to jurisdiction or cause fundamental prejudice should not nullify proceedings; the court should order a fresh complying affidavit rather than strike out the suit
- An interested party is one with a stake in the proceedings who will be affected by the decision, and joinder requires the intended party's relevance and absence of prejudice
- A verifying affidavit sworn by a person not qualified to commission oaths falls short of Order 4 Rule 2 requirements and is of no legal value
Court orders
#- 1.The verifying affidavit accompanying the Plaint dated 14/12/2020 is struck out
- 2.The Plaintiff is ordered to file a verifying affidavit in compliance with Order 4 Rule 1(2) of the Civil Procedure Rules within 14 days from the date of the Ruling
- 3.In default, the plaint dated 14/12/2020 shall stand struck out on the 15th day following the ruling
- 4.The 2nd Defendant's notice of motion dated 23/6/2025 is dismissed
- 5.With respect to the 2nd Defendant's notice of motion, each party to bear their own costs
- 6.The Plaintiff's notice of motion dated 16/5/25 seeking joinder of Equity Bank Kenya Limited as an interested party is struck out
- 7.With respect to the Plaintiff's notice of motion dated 16/5/25, each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over the land dispute; applications under Order 4 Rule 1(2), Order 3 Rule 2 and Order 1 Rule 10(2) of the Civil Procedure Rules, 2010, with Article 50 of the Constitution invoked
Relief refused
#Striking out of the plaint for incompetence
The court exercised its discretion to sustain the suit, striking out only the defective verifying affidavit and allowing the plaintiff to file a complying one
Dismissal of the suit for non-compliance with directions
Having spared the suit on the verifying affidavit issue, the court declined this prayer for the same reasons
Joinder of Equity Bank Kenya Limited as interested party
The title exhibited related to LR No 14970/90, which is different and distinct from the suit lands (LR No 1490/90 and LR No 1490/96), and the plaintiff failed to establish the connection
Costs
Each party to bear their own costs on both applications
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.
The verifying affidavit accompanying the Plaint dated 14/12/2020 is struck out. I exercise discretion not to strike out the plaint, except to order the Plaintiff hereby to file a verifying affidavit in compliance with Order 4 Rule 1(2) of the Civil Procedure Rules within 14 days from the date of this Ruling.
In default, the plaint dated 14/12/2020 shall stand struck out on the 15th day following this ruling.
The 2nd Defendant’s notice of motion is hereby dismissed.
With respect to the Plaintiff’s notice of motion dated 16/5/25; a. The application is devoid of merit b. It is struck out c. Each party to bear their own costs
A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal.
Rules of procedure are hand maidens and not mistresses of justice. They should not be elevated to a fetish.
Issues in the judgment
#Internal inconsistency in the date of the compliance directions: the 2nd Defendant's application refers to directions issued on 23/4/24, but the issues framed and the second heading refer to directions issued on 23/4/25
Inconsistency in the default striking-out period: the interim orders give 8 days while the final orders give 15 days
Inconsistency in costs for the 2nd Defendant's application: the interim orders award costs on a higher scale while the final orders direct each party to bear their own costs
Inconsistent spellings of the plaintiff's name and the commissioner for oaths' name (Gachuhi/Gachihi; Kibra/Kibira) within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gachuhi v Kamonjoh & another; Thambiri & 4 others (Interested Parties) (Land Case E179 of 2021) [2025] KEELC 7309 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7309/eng@2025-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.