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ELCStruck OutNot stated in the judgment· [2026] KEELC 3724 (KLR)

Achieng v Atinga & 3 others (Environment and Land Appeal 1 of 2023) [2026] KEELC 3724 (KLR)

Environment and Land Court
12 June 2026
1,141 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 struck out a stay application because the supporting affidavit was unsigned, leaving it legally unsupported.

What this practically means

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Executive summary

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The Appellant/Applicant, Hilda Linet, moved the court by notice of motion dated 8th December 2025 seeking a temporary stay of proceedings and of execution of a decree of the lower court pending the hearing and determination of Civil Appeal No. E277 of 2024 before the Court of Appeal, Kisumu. The application was supported by an affidavit of the applicant sworn on the same date, to which the 1st and 2nd Respondents replied by an affidavit sworn on 15th December 2025. The dispute traces back to the succession estate of Dr. Polycarp Eric Wambi Atinga in Migori HCC Succession Cause No. 27 of 2018, from which an eviction judgment in Rongo PMCC ELC No. 24 of 2019 arose. The 1st and 2nd Respondents objected that the application improperly sought relief belonging to the Court of Appeal and was an abuse of process. The court framed two issues: whether the application for stay was properly before it, and what orders should issue. Before addressing those, the court noted that the applicant's supporting affidavit bore no signature. Relying on CMC Motors Group Ltd v Bengeria Arap Korir and Dardanelli & 6 Others v Tilito & 3 Others, the court held that an unsigned affidavit is not a valid sworn statement, struck it out, and found the application bare and legally unsupported. Declining to address the remaining issues, the court struck out the application for stay with costs. The judgment was delivered virtually on 12th June 2026 by Justice John Walter Wanyonyi.

Key legal issues

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01

Validity of an unsigned affidavit

Holding

An affidavit must be signed by the deponent and sworn before a Commissioner for Oaths; an unsigned affidavit fails the oath requirement and is struck out, rendering the application it supports bare

Reasoning

The court relied on the Black's Law Dictionary definition of an oath and on CMC Motors Group Ltd v Bengeria Arap Korir, where an affidavit whose signature and commissioning did not comply with statutory requirements was struck out. It also followed Dardanelli & 6 Others v Tilito & 3 Others on the consequences of defective commissioning. Applying these authorities, the court found the deponent's affidavit unsigned and struck it out, leaving the application without evidentiary support and unarguable.

p. 3
02

Whether the application for stay is properly before the court

Holding

The application is not properly before the court because its originating document, the supporting affidavit, is defective and has been struck out

Reasoning

Having struck out the unsigned supporting affidavit of Hilda Linet, the court held that there was no proper document originating the application. The court expressly declined to address the respondents' jurisdictional objections and the merits of the stay, since the application could not stand without a supporting affidavit. The application therefore failed on a threshold evidentiary defect rather than on jurisdiction or merits.

p. 3

Legal principles established

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  • An unsigned affidavit is not evidence on oath and an application unsupported by a valid affidavit is bare and liable to be struck out

Court orders

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  1. 1.The application dated 8th December 2025 for stay of proceedings and execution is struck out with costs

Authorities

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Legislation

  • Evidence ActSections 5 Cap 15; 106; 106B

Cases cited (3)

  • CMC Motors Group Ltd versus Bengeria Arap Korir T/A Marben School & Another
    (2013) eKLR
  • Dardanelli & 6 Others v Tilito & 3 Others
    (Land Case E041 of 2024 (2025) KEELC 392) KLR
  • Gaddy versus Casper, Air Chatter, Limited
    (Civil Appeal Number 7 of 1955 (1950) EACA 139
Jurisdiction invoked
Inherent jurisdiction to regulate its own proceedings; stay sought pending Civil Appeal No. E277 of 2024 before the Court of Appeal, Kisumu

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, "Achieng v Atinga & 3 others (Environment and Land Appeal 1 of 2023) [2026] KEELC 3724 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3724/eng@2026-06-12

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