Abila v Oloo (Enviromental and Land Originating Summons 18 of 2022) [2025] KEELC 8024 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out three affidavits because their jurats falsely claimed they were sworn before a commissioner the deponents never actually appeared before.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Section 5 of the Oaths and Statutory Declarations Act regarding the place of commission stated in the jurat
The affidavits were defective because they were purportedly commissioned at Kakamega while the deponents swore they signed in Busia, and the commissioner's office is in Nairobi
Cross-examination established that the Defendant signed his affidavit at Busia Villa Hotel and DW3 signed in Busia, both denying appearing before Peter W. Mugalo in Kakamega. The Advocates Search Engine showed Mugalo practising from Corner House, Kimathi Street, Nairobi, and no evidence showed offices in Busia or Kakamega. The jurat therefore falsely recorded the place of commission, contravening Sections 5 and 8.
Whether the Ugandan authority in Saggu v Roadmaster Cycles could save the defective affidavits
Saggu was distinguished because it dealt with an undated affidavit discovered at a preliminary stage, not affidavits whose veracity had been tested in cross-examination
In Saggu the defect was merely an undated affidavit raised at the jurisdictional stage, where re-swearing was permissible. Here, the deponents had already testified and been cross-examined, and it emerged they could not have appeared before the purported commissioner. The veracity of the affidavits was found wanting, so the curative remedy was unavailable.
Application of Gedion Sitelu Konchellah v Julius Lekakeny Ole Sunkuli (Supreme Court)
Following Konchellah, defective affidavits are struck out as having no legal value
The court adopted the Supreme Court's finding that a replying affidavit contravening the legal requirements for making an affidavit is fatally defective and of no legal value. Though the defects differed (unsigned/uncommissioned in Konchellah, false jurat here), the principle that such affidavits are not affidavits within the law applied.
Legal principles established
#- An affidavit whose jurat falsely states the place of commission, where the deponent did not appear before the commissioner named, is defective and of no legal value
- Where the defect emerges after the deponents have testified and been cross-examined, the curative remedy of re-swearing is no longer available
- A decision of the Supreme Court of Kenya takes precedence over a decision of the Court of Appeal of Uganda
Court orders
#- 1.The replying affidavit of the Defendant dated 4th September 2022 is struck out and expunged from the record
- 2.The replying affidavits of Wilson Ogolla Olendo (DW1) and Anthony Ochieng Ogolla (DW3) dated 10th September 2022 are struck out and expunged from the record
- 3.There shall be no orders as to costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over an Originating Summons; interlocutory application under Section 5 of the Oaths and Statutory Declarations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abila v Oloo (Enviromental and Land Originating Summons 18 of 2022) [2025] KEELC 8024 (KLR)", Case Analysis (2025). Not stated in the extract (Originating Summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8024/eng@2025-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.