Tom Brown Limited & another v County Executive Committee Member in Charge of Planning & 2 others; Attorney General & 4 others (Interested Parties) (Environment and Land Petition E053 of 2022) [2025] KEELC 8231 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a defective affidavit but kept land injunctions in force, warning that rushed commissioning of affidavits is fatal.
What this practically means
#Executive summary
#Key legal issues
#Whether the affidavit of Major Julius Messo contravened Section 5 of the Oaths and Statutory Declarations Act
Yes; the affidavit was incurably defective and was struck out
Section 5 presupposes that the deponent appears before, is identified by, and takes the oath in the physical presence of the Commissioner for Oaths named in the jurat. Mr Onchuru, the named commissioner, unchallenged, disowned commissioning the affidavit. Mr Mutua's own averment that the affidavit was taken to Ayieko Kang'ethe & Co. Advocates for commissioning confirmed the oath was not administered before the named commissioner. Such core defects cannot be cured under Order 19 Rule 7 or Article 159(2)(d).
Whether the injunction orders of 8th June 2023 ought to be reviewed and set aside
No; striking out the affidavit did not undermine the basis of the injunction and the application suffered from unexplained delay
Review is governed by Section 80 CPA and Order 45 Rule 1(1), requiring application without unreasonable delay. The application was filed about one year and nine months after the ruling, and even the letter to the Commissioner for Oaths came a year and eight months later, with no satisfactory explanation. Further, the impugned ruling rested on the Petitioners' own evidence - the 17th May 2022 letter, unexplained inconsistencies in the change of user and development approvals - and not on Major Messo's affidavit, so its striking out altered nothing.
Legal principles established
#- An affidavit that was not sworn before the Commissioner for Oaths named in the jurat is incurably defective and cannot be saved by Order 19 Rule 7 of the Civil Procedure Rules or Article 159(2)(d) of the Constitution
- An application for review must be brought without unreasonable delay and the delay must be explained
Court orders
#- 1.The affidavit sworn on 2nd June 2023 by Major Julius Messo is hereby struck out for being incurably defective and for failing to comply with Section 5 of the Oaths and Statutory Declarations Act.
- 2.The injunctive orders issued on 8th June 2023 will remain in force pending the hearing and determination of the Petition.
- 3.Each party will bear its own costs of the application.
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 80 of the Civil Procedure Act; Orders 2, 19, 45 and 51 of the Civil Procedure Rules; Section 5 of the Oaths and Statutory Declarations Act
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, "Tom Brown Limited & another v County Executive Committee Member in Charge of Planning & 2 others; Attorney General & 4 others (Interested Parties) (Environment and Land Petition E053 of 2022) [2025] KEELC 8231 (KLR)", Case Analysis (2025). Notice of Motion dated 11th March 2025 (in the main Petition concerning L.R. No. 209/1458/2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8231/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.