Mwandi v Songe (Environment and Planning Miscellaneous Application E005 of 2024) [2026] KEELC 2399 (KLR)
The bottom line
#A landowner's entire lawsuit was thrown out because his own lawyer improperly swore the verifying affidavit — a fatal paperwork error courts won't forgive.
What this practically means
#Executive summary
#Key legal issues
#Whether a verifying affidavit drawn and commissioned by the plaintiff's own advocate is competent
It is incompetent; the advocate's commissioning offends the proviso to Section 4(1) of the Oaths and Statutory Declarations Act, rendering the affidavit a nullity and, by consequence, the plaint unsupported
The court found the verifying affidavit sworn by Boniface Mwandi was drawn by Dola, Magani & Co. Advocates and commissioned by Dola Indidis of the same firm, giving the commissioner an interest in the proceedings. Relying on Caltex Oil and Lesrima Simeon Saimanga, the court held the breach is substantive, not a curable irregularity, and cannot be salvaged under Article 159. The plaint, unaccompanied by a valid verifying affidavit as required by Order 4 Rule 1(2), had to be struck out under Order 4 Rule 1(6).
Legal principles established
#- A commissioner for oaths shall not exercise those powers in a proceeding in which he is the advocate for any of the parties or in which he is interested
- An affidavit commissioned in contravention of Section 4(1) of the Oaths and Statutory Declarations Act is not an affidavit known in law and cannot be cured under Article 159
Court orders
#- 1.The verifying affidavit sworn by the Plaintiff on 18th December, 2024 is found incompetent and is struck out
- 2.The Plaint dated 18th December, 2024 is struck out with costs to the Defendant
- Jurisdiction invoked
- Original civil jurisdiction under the Civil Procedure Act (Cap 21) and the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwandi v Songe (Environment and Planning Miscellaneous Application E005 of 2024) [2026] KEELC 2399 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2399/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.