Ngonyo v Yusuf & 2 others (Environment and Land Case 813 of 2014) [2026] KEELC 798 (KLR)
The bottom line
#The Environment and Land Court refused to reinstate a struck-out affidavit, ruling that registry records, not a former official's affidavit, prove whether a land grant was executed.
What this practically means
#Executive summary
#Key legal issues
#Whether leave should be granted to reintroduce a struck-out affidavit
Application dismissed; the Applicant failed to demonstrate sufficient cause to warrant the exercise of the Court's discretion.
The affidavit was filed out of time and without leave and was struck out. Once struck out it ceases to exist on the record unless reinstated on sufficient cause. The Applicant offered no explanation for the delay, and the evidence sought (denial of execution of a registered Grant) is properly proved through land registry records under the Land Registration Act, with the Registrar of Titles already a party. Reintroduction would disrupt proceedings and prejudice the Plaintiff given the age of the matter.
Whether the application is res judicata
Res judicata not strictly applicable because the affidavit was struck out on procedural, not substantive, grounds.
The Court noted the Plaintiff raised res judicata but held that since the earlier striking out was procedural and not a substantive determination of admissibility, the doctrine does not strictly apply. The Applicant nevertheless bore the burden of showing sufficient cause, which was not discharged.
The proper evidentiary avenue for challenging the execution of a registered Grant
Authenticity, execution or regularity of a registered grant must ordinarily be interrogated through registry records and the Registrar, not collateral affidavits by former office holders.
Sections 7, 9, 14, 26 and 35 of the Land Registration Act establish the register, parcel file and Registrar as the official repositories and authoritative evidentiary source. Certified extracts and testimony from the Registrar, who is the 3rd Defendant and statutory custodian, are the proper means; the Applicant did not show those mechanisms were inadequate.
Legal principles established
#- A struck-out affidavit ceases to exist on the record unless reinstated through a proper and principled exercise of discretion, which requires sufficient cause
- Res judicata does not strictly apply where an affidavit was struck out on procedural rather than substantive grounds, but the applicant must still show sufficient cause
- Mere assertion that an affidavit will assist the court is not sufficient cause to excuse non-compliance with procedural timelines
Court orders
#- 1.The Chamber Summons dated 3rd October 2025 is dismissed
- 2.Costs shall be borne by the 2nd Defendant/Applicant
- Jurisdiction invoked
- Sections 1B, 3, 34 and 63(e) of the Civil Procedure Act; Order 19 Rules 1, 2 and 9 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngonyo v Yusuf & 2 others (Environment and Land Case 813 of 2014) [2026] KEELC 798 (KLR)", Case Analysis (2026). Chamber Summons dated 3rd October 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/798/eng@2026-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.