Ngeno & 2 others v Ngeno & another (Environment and Land Appeal E002 of 2021) [2026] KEELC 2601 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the affidavit in support of the application dated 15th September, 2025 is defective
- 2.Whether this Appeal should be remitted to the trial Court for purposes of taking further evidence
- 3.Whether in the alternative, this Court should grant leave to the Appellants/Applicants to adduce additional evidence
- 4.Who should bear costs of this application
Key legal issues
#Validity of the supporting affidavit commissioned in the deponent's absence
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.
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.
Consequence of striking out the supporting affidavit
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.
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.
Costs
Costs follow the event under Section 27 of the Civil Procedure Act and were awarded to the Respondents.
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.
Legal principles established
#- 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
#- 1.The affidavit in support of the application dated 15th September, 2025 is struck out
- 2.The application dated 15th September, 2025 is struck out with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Leave to adduce additional/fresh evidence on appeal
Not addressed on merits following the striking out of the supporting affidavit
Costs
The application dated 15th September, 2025 is struck out with costs to the Respondents.
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.
Taking the foregoing into consideration, the Appellants/Applicants Notice of Motion Application dated 15th September, 2025 is hereby struck out with costs.
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.
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.
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.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.