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ELCDismissedNot stated in the judgment

Kigumba & another v Marete & 3 others (Enviromental and Land Originating Summons E030 of 2025) [2026] KEELC 348 (KLR)

Environment and Land Court of Kenya
26 January 2026
4,136 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ruled that unsealed affidavit annexures are a curable paperwork flaw, not a reason to dismiss a case.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection dated 12 January 2026 taken by the 1st to 4th Defendants in a land dispute commenced by originating summons, in which they sought the striking out of the annexures to the plaintiff's supporting affidavit, the expungement of the offending affidavit paragraphs, and the dismissal of the originating summons. The objection rested on Rule 9 of the Oaths and Statutory Declarations Rules, which requires exhibits to affidavits to be securely sealed under the commissioner of oaths' seal and marked with serial letters of identification. The court framed three issues: compliance with Rule 9, the consequences of non-compliance, and whether striking out was warranted. On the first issue, the court found that the annexures had neither been serialized nor securely sealed; what had been done was mere certification of photocopies as true copies, which does not satisfy Rule 9. On the second issue, the court reviewed the conflicting Court of Appeal authorities - Zaheer Jhanda v IEBC, which treated Rule 9 breaches as mandatory and incurable, and the later decision in Oginga v Moko [2024], which held that venial formalistic failures do not automatically render annexures inadmissible, the test being prejudice, mockery of due process or bad faith. Following the later authority, and mindful that land disputes are emotive and should be determined on merit, the court held that the breach was curable under Article 159(2)(d) of the Constitution. On the third issue, the affidavit complied with Order 19 and the originating summons with Order 37 Rule 7 of the Civil Procedure Rules; striking out would be drastic and the objection's issues could be subsumed at directions under Order 37 Rules 16, 17 and 19. The preliminary objection was dismissed with no order as to costs, each party bearing its own costs, the plaintiff having been perfunctory in compiling the documentation.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the impugned annexures comply with the provisions of Rule 9 of the Oaths and Statutory Declarations Rules or otherwise
  2. 2.Whether the non-compliance with Rule 9 by and of itself is fatal and irredeemable or otherwise
  3. 3.Whether the court should strike out the annexures, the offending paragraphs and the entire originating summons or otherwise

Key legal issues

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01

Compliance of the annexures with Rule 9 of the Oaths and Statutory Declarations Rules

Holding

The annexures were neither serialized in the manner stipulated nor securely sealed; what was done amounted only to certification, which does not satisfy Rule 9.

Reasoning

The court examined the annexures to the supporting affidavit and found they bore no seal of the commissioner of oaths. Rule 9 requires all exhibits to be securely sealed under the commissioner's seal and marked with serial letters of identification. Certification only applies to secondary (photocopy) documents to confirm they are true copies of originals, and cannot substitute for the sealing and serialization Rule 9 demands. The court therefore agreed with the defendants' submissions on this issue.

p. 4
02

Whether breach of Rule 9 is fatal and irredeemable

Holding

No - the breach is not per se fundamental; the court retains a discretion to cure it under Article 159(2)(d), following the Court of Appeal's later decision in Oginga v Moko.

Reasoning

Although Zaheer Jhanda treated breaches of Rule 9 as mandatory and incurable, the Court of Appeal in Oginga v Moko [2024] later held that venial formalistic failures do not automatically render annexures inadmissible; the test is substantive - prejudice, mockery of due process, or bad faith. Adopting that later, more nuanced authority, and noting the sensitivity of land disputes, the court held that the failure here could be forgiven under Article 159(2)(d) and did not warrant driving the plaintiff from the seat of justice.

p. 6
03

Whether the annexures, affidavit paragraphs and originating summons should be struck out

Holding

No - the preliminary objection was dismissed; the affidavit complied with Order 19, the originating summons with Order 37 Rule 7, and the issues could be addressed at directions under Order 37 Rules 16, 17 and 19.

Reasoning

Beyond the annexure complaint, no irregularity was pointed out in the affidavit, which the court confirmed conformed with Order 19 of the Civil Procedure Rules, and the originating summons ex facie complied with Order 37 Rule 7. Even if the annexures had been struck out, the exhibiting paragraphs would remain. Striking out is drastic and would drive a litigant from the seat of justice; the objection therefore had no utilitarian value, being properly a matter for directions.

p. 7

Legal principles established

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  • Failure to serialize and securely seal annexures under Rule 9 of the Oaths and Statutory Declarations Rules does not automatically invalidate them; the court retains discretion to excuse the defect under Article 159(2)(d) of the Constitution, especially in land disputes.
  • Certification of a photocopy as a true copy of the original is distinct from the serialization and sealing of annexures required by Rule 9.
  • Striking out a pleading is a drastic and draconian jurisdiction to be exercised sparingly and with circumspection.

Court orders

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  1. 1.The preliminary objection dated 12th January, 2026 be and is hereby dismissed.
  2. 2.Each party shall bear own costs of the preliminary objection.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction over a dispute touching on ownership of and title to land; procedural framework under Article 159(2)(d) of the Constitution, the Oaths and Statutory Declarations Rules and the Civil Procedure Rules, 2010

Relief refused

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Expungement of the impugned annexures to the supporting affidavit

Non-compliance with Rule 9 is not per se fatal; the court retains discretion under Article 159(2)(d) and declining to expunge avoids driving the plaintiff from the seat of justice

p. 7

Striking out of the offending paragraphs of the supporting affidavit and the originating summons

No other irregularity was shown in the affidavit; striking out pleadings is a drastic measure to be resorted to only in the clearest of cases, and the issues raised could be subsumed during directions under Order 37

p. 7

Costs of the preliminary objection to the plaintiff

The plaintiff was perfunctory in preparing and compiling the documentation, so awarding costs would countenance negligent and slovenly conduct

p. 7

Costs

Each party shall bear own costs of the preliminary objection (under section 27 of the Civil Procedure Act, Chapter 21, Laws of Kenya).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

i. The preliminary objection dated 12th January, 2026 be and is hereby dismissed. ii. Each party shall bear own costs of the preliminary objection. It is so ordered.
p. 8Final orders - dismissal of the preliminary objection and costs
Flowing from the foregoing analyses, I come to the conclusion that the failure to comply with rule 9 of the oath and statutory rules does not automatically invalidate the impugned annextures.
p. 6Effect of non-compliance with Rule 9 - not automatically fatal
The ratio at the foot of the latter decision drives me to the conclusion that the mere failure to comply with the provisions of rule 9 of the oaths and statutory rules is not fundamental. On the contrary, such a violation can still be cured by invoking and deploying the provisions of article 159 [2] [d] of the constitution 2010.
p. 6Curing procedural defects under Article 159(2)(d)
I must point out that there is a distinction between serialization and sealing of the annextures in terms of rule 9 [supra] on one hand and certification.
p. 5Distinction between sealing/serialization and certification
Moreover, I am alive to the fact that striking out of a pleading, including an affidavit, where necessary, is a drastic and draconian measure. Such an endeavor ought to be resorted to in the clearest of cases.
p. 7Striking out pleadings - sparing jurisdiction
In the premises, I am not prepared to expunge the impugned annextures. To this end, I find and hold that the preliminary objection is not merited.
p. 7Annexures retained; objection unmerited

Issues in the judgment

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minor

The grounds of the preliminary objection, and counsel's submissions, variously refer to Article 159(2)(d) and Article 159(2)(b)/159[1](d) of the Constitution, including within quoted passages, creating internal inconsistency in the constitutional provision invoked

minor

Paragraph numbering in the judgment repeats the number 32 for two consecutive paragraphs

minor

The preliminary objection is described as being by the 'Defendants [sic] respondents' without a case title or suit number appearing anywhere in the judgment, so the parties' names and the case number are not ascertainable from the document

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, "Kigumba & another v Marete & 3 others (Enviromental and Land Originating Summons E030 of 2025) [2026] KEELC 348 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/348/eng@2026-01-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.