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ELCDismissedChamber Summons dated 3rd October 2025· [2026] KEELC 798 (KLR)

Ngonyo v Yusuf & 2 others (Environment and Land Case 813 of 2014) [2026] KEELC 798 (KLR)

Environment and Land Court
16 February 2026
1,824 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (Mohammed N. Kullow, J) delivered virtually on 16th February 2026 on the 2nd Defendant/Applicant's Chamber Summons dated 3rd October 2025. The Applicant sought leave to file and adopt an affidavit sworn on 6th October 2023 by Mr. Sammy Silas Komen Mwaita, the former Commissioner of Lands, which had been struck out on 12th October 2023 for want of leave and for being filed out of time. The affidavit allegedly denies execution of the Grant relating to LR. No. 14720. The Applicant, supported by Ezekiel Kipkulei C. Komen's affidavit, argued the affidavit was material, struck out on a mere technicality, and that no prejudice would arise since the defence case had not commenced and cross-examination would be available, invoking Articles 25(c), 50(1) and 159 of the Constitution and authorities including Wambui v Frank Investment Ltd and Samuel Kiti Lewa v Housing Finance of Kenya Ltd. The Plaintiff/Respondent opposed, contending the affidavit was irregularly filed, the application res judicata, and an afterthought and delay tactic, relying on Rajesh Rughani, Salat v IEBC, Utalii Transport and Supermarine Handling Services. The Court framed a single issue: whether the Chamber Summons was merited. It held that a struck-out affidavit ceases to exist on the record unless reinstated on sufficient cause; res judicata was not strictly applicable since the striking out was procedural; and that the Applicant gave no explanation for delay. Critically, the Court held that challenges to the execution of a registered Grant must be interrogated through land registry evidence under Sections 7, 9, 14, 26 and 35 of the Land Registration Act, with the Registrar of Titles (the 3rd Defendant) as the proper source, not collateral affidavits by former office holders. The application was dismissed with costs to be borne by the 2nd Defendant/Applicant.

Key legal issues

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01

Whether leave should be granted to reintroduce a struck-out affidavit

Holding

Application dismissed; the Applicant failed to demonstrate sufficient cause to warrant the exercise of the Court's discretion.

Reasoning

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.

p. 4
02

Whether the application is res judicata

Holding

Res judicata not strictly applicable because the affidavit was struck out on procedural, not substantive, grounds.

Reasoning

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.

p. 3
03

The proper evidentiary avenue for challenging the execution of a registered Grant

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Chamber Summons dated 3rd October 2025 is dismissed
  2. 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

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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, "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.