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ELCDismissedKericho ELC Appeal arising from Kericho CM ELC Case No. 41 of 2018 (ruling on Notice of Motion dated 15th September, 2025)

Ngeno & 2 others v Ngeno & another (Environment and Land Appeal E002 of 2021) [2026] KEELC 2601 (KLR)

Environment and Land Court
30 April 2026
5,743 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an application because the person who swore its affidavit did not appear before the Commissioner for Oaths in person.

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 Kericho (L. A. Omollo J) on a Notice of Motion dated 15th September 2025 filed by the Appellants in their appeal against Hon. S.M Mokua's decision in Kericho CM ELC Case No. 41 of 2018. The application, premised on Section 78(1) of the Civil Procedure Act among other provisions, sought remittal of the appeal to the trial court for the taking of further evidence concerning alleged fraud, irregular removal of a caution, irregular amalgamation and subdivision of land parcels Kericho/Kyogong/1009, 1036, 1345, 1478 and 1531, and irregular issuance of titles, or in the alternative leave to adduce additional evidence, being the trial bundle in Bomet CM Criminal Case No. E751 of 2025 in which the former Bomet Land Registrar, Jotham Ngeno, was charged with fraud offences. The Respondents opposed, arguing the application was an abuse of process filed on the eve of judgment, that the criminal case was pending and did not implicate them, and that the supporting affidavit was defective. Upon cross-examination, the 3rd Appellant admitted he was outside Kenya on 15th September 2025 and did not appear before any advocate in Kenya for commissioning of the affidavit. Applying Section 5 of the Oaths and Statutory Declarations Act and the decisions in In re Estate of Richard Kanampiu Nanchu and Dardanelli v Tilito, the court held that personal appearance before a Commissioner for Oaths is mandatory and that the affidavit was defective. The affidavit and the application were struck out with costs. The court declined to address the remittal and additional evidence prayers on their merits. The main appeal remains pending.

Questions the Court framed

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

  1. 1.Whether the affidavit in support of the application dated 15th September, 2025 is defective
  2. 2.Whether this Appeal should be remitted to the trial Court for purposes of taking further evidence
  3. 3.Whether in the alternative, this Court should grant leave to the Appellants/Applicants to adduce additional evidence
  4. 4.Who should bear costs of this application

Key legal issues

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01

Validity of the supporting affidavit commissioned in the deponent's absence

Holding

The affidavit sworn by Benard Ngeno on 15th September, 2025 was defective because he admitted being out of Kenya and did not appear before a Commissioner for Oaths in Kenya, contrary to Section 5 of the Oaths and Statutory Declarations Act.

Reasoning

The court relied on Section 5 of the Oaths and Statutory Declarations Act requiring the commissioner to state truly the place and date of swearing, and on In re Estate of Richard Kanampiu Nanchu and Dardanelli v Tilito, which hold that personal appearance before a commissioner is fundamental to verification and accountability. Cross-examination established the deponent was abroad on the date of swearing with no explanation of how the affidavit was commissioned, rendering the jurat unreliable and the affidavit incurably defective.

p. 13
02

Consequence of striking out the supporting affidavit

Holding

With the affidavit struck out, the application dated 15th September, 2025 has no evidentiary support and falls with it; the remittal and additional-evidence issues were not reached.

Reasoning

Following Dardanelli & others v Tilito, where the supporting affidavit was struck out the application could not stand without it. The court accordingly struck out both the affidavit and the application, declined to address the merits of the remittal and additional evidence prayers, and awarded costs to the Respondents under the general rule that costs follow the event.

p. 13
03

Costs

Holding

Costs follow the event under Section 27 of the Civil Procedure Act and were awarded to the Respondents.

Reasoning

The court restated the settled principle that a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. Since the application was struck out, the Respondents as the successful parties were entitled to costs.

p. 13

Legal principles established

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  • Personal appearance of a deponent before a Commissioner for Oaths is mandatory; an affidavit sworn when the deponent was out of the country is defective and fatal to the application it supports.

Court orders

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  1. 1.The affidavit in support of the application dated 15th September, 2025 is struck out
  2. 2.The application dated 15th September, 2025 is struck out with costs

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Kericho
Kericho CM ELC Case No. 41 of 2018
Jurisdiction invoked
Articles 40, 47, 50, 162 & 165 of the Constitution of Kenya; Section 4 & 13 of the Environment and Land Court Act; Section 78(1) of the Civil Procedure Act

Relief refused

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Remittal/remand of the appeal to the trial Court for taking of further evidence

The application was struck out for want of a valid supporting affidavit; the issue was not addressed on its merits

p. 13

Leave to adduce additional/fresh evidence on appeal

Not addressed on merits following the striking out of the supporting affidavit

p. 13

Costs

The application dated 15th September, 2025 is struck out with costs to the Respondents.

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.

Taking the foregoing into consideration, the Appellants/Applicants Notice of Motion Application dated 15th September, 2025 is hereby struck out with costs.
p. 13Final orders - striking out of the application
As was held in the above cited judicial decision, personal appearance of a deponent before a Commissioner for Oaths is mandatory and failure to do so is fatal.
p. 13Mandatory personal appearance before Commissioner for Oaths
In view of the foregoing, the afidavit in support of the application dated 15th September, 2025 and the application dated 15th September, 2025 are hereby struck out.
p. 13Consequence of defective affidavit
The general rule is that costs shall follow the event. This is in accordance with the Provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise.
p. 13Costs principle

Issues in the judgment

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minor

Internal inconsistency in dates: the supporting affidavit refers to an application 'dated 20th January, 2025' while the grounds of appeal refer to applications dated 24th September, 2018 and 20th January, 2021, suggesting a typographical error in the deponent's affidavit.

minor

The judgment is dated 30th April, 2026 but paragraph 64 records that both parties filed submissions on '26th January,2026' and the ruling was reserved for 27th January, 2026, which is internally consistent; however the appeal was stated in the deponent's affidavit to have been filed on 7th September, 2021 whereas the Memorandum of Appeal is dated 13th September, 2021.

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, "Ngeno & 2 others v Ngeno & another (Environment and Land Appeal E002 of 2021) [2026] KEELC 2601 (KLR)", Case Analysis (2026). Kericho ELC Appeal arising from Kericho CM ELC Case No. 41 of 2018 (ruling on Notice of Motion dated 15th September, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2601/eng@2026-04-30

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