Kigumba & another v Marete & 3 others (Enviromental and Land Originating Summons E030 of 2025) [2026] KEELC 348 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the impugned annexures comply with the provisions of Rule 9 of the Oaths and Statutory Declarations Rules or otherwise
- 2.Whether the non-compliance with Rule 9 by and of itself is fatal and irredeemable or otherwise
- 3.Whether the court should strike out the annexures, the offending paragraphs and the entire originating summons or otherwise
Key legal issues
#Compliance of the annexures with Rule 9 of the Oaths and Statutory Declarations Rules
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.
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.
Whether breach of Rule 9 is fatal and irredeemable
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.
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.
Whether the annexures, affidavit paragraphs and originating summons should be struck out
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.
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.
Legal principles established
#- 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
#- 1.The preliminary objection dated 12th January, 2026 be and is hereby dismissed.
- 2.Each party shall bear own costs of the preliminary objection.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
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
#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.
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.
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.
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.
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.
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.
Issues in the judgment
#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
Paragraph numbering in the judgment repeats the number 32 for two consecutive paragraphs
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.