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ELCPartially AllowedNot stated in the extract (Originating Summons)· [2025] KEELC 8024 (KLR)

Abila v Oloo (Enviromental and Land Originating Summons 18 of 2022) [2025] KEELC 8024 (KLR)

Environment and Land Court
18 November 2025
2,602 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by Boaz N. Olao J arises mid-trial in an Originating Summons suit between Maurice Ojiambo Abila (Plaintiff) and Eddy Oloo (Defendant). During the Defendant's case, Plaintiff's counsel applied orally to strike out the replying affidavits of the Defendant and his witnesses Wilson Ogolla Olendo (DW1) and Anthony Ochieng Ogolla (DW3) for contravening Sections 5 and 8 of the Oaths and Statutory Declarations Act. The affidavits were shown on their jurats as sworn at Kakamega before Advocate Peter W. Mugalo, yet cross-examination established that the Defendant signed at Busia Villa Hotel and DW3 signed in Busia, both denying appearing before Mugalo in Kakamega. Unrebutted evidence from the Advocates Search Engine showed Mugalo practising from Corner House, Kimathi Street, Nairobi, with no evidence of offices in Busia or Kakamega. The court found the affidavits defective. The Defendant's reliance on Article 159(2)(d) and the Ugandan case of Saggu v Roadmaster Cycles (U) Ltd was rejected: Saggu was distinguished because it concerned a curable undated affidavit raised at a preliminary stage, whereas here the deponents had already testified and been cross-examined, so the curative remedy was unavailable. The court followed the Supreme Court's decision in Gedion Sitelu Konchellah v Julius Lekakeny Ole Sunkuli, holding that a decision of the Supreme Court of Kenya takes precedence over the Ugandan Court of Appeal. The application was allowed; the three affidavits were struck out and expunged, with no orders as to costs. The substantive suit remains to be concluded.

Key legal issues

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01

Compliance with Section 5 of the Oaths and Statutory Declarations Act regarding the place of commission stated in the jurat

Holding

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

Reasoning

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.

02

Whether the Ugandan authority in Saggu v Roadmaster Cycles could save the defective affidavits

Holding

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

Reasoning

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.

03

Application of Gedion Sitelu Konchellah v Julius Lekakeny Ole Sunkuli (Supreme Court)

Holding

Following Konchellah, defective affidavits are struck out as having no legal value

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The replying affidavit of the Defendant dated 4th September 2022 is struck out and expunged from the record
  2. 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. 3.There shall be no orders as to costs

Authorities

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Legislation

  • Oaths and Statutory Declarations ActSection 5
  • Oaths and Statutory Declarations ActSection 8
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 50(1)
  • Constitution of Uganda 1995Article 126(e)

Cases cited (6)

  • Mary Gathoni & Another v Frida Ariri Otolo & another
    Civil Appeal No 66 of 2019 [2020] eKLR
  • Regina Munyiva Ndunge v KCB
    [2005]
  • Gedion Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others
    Civil Application No 26 of 2018 [2018 KESC 58 KLR]
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & Others
    [2013] eKLR
  • Saggu v Roadmaster Cycles (U) Ltd
    [2002] I EA 258
  • Ibrahim v Sheikh Bros Investment Ltd
    [1973] EA 118
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.