Everline Rosa v Catherine Koriko, Benja Koriko & Daniel Koriko
The bottom line
#A Kenyan land court dismissed a bid to appeal late because the lawyer, not the client, swore the supporting affidavit on contested facts.
What this practically means
#Executive summary
#Key legal issues
#Competency of the application supported by an advocate's affidavit on contested facts
The supporting affidavit sworn by counsel on contentious issues was defective and struck out, leaving the application unsupported
The court adopted the Court of Appeal's restatement that advocates should not swear affidavits in contested matters where clients are available, as such depositions risk hearsay and force counsel to become a witness. Counsel had recently come on record and had no personal knowledge of the decree, bill of costs and ruling; the respondent annexed contrary correspondence with the previous advocates.
Whether leave to appeal out of time and stay of execution were merited
Without a competent affidavit, the grounds for extension of time and the twin stay principles of substantial loss and prejudice were not demonstrated; the application failed
The affidavit was the sole vehicle for the factual grounds. Once struck out, no evidence remained to establish sufficient cause for the delay from the 9 May 2023 judgment or substantial loss and prejudice under Order 42 Rule 6, rendering the application incompetent and hollow and undeserving of the discretionary reliefs sought.
Legal principles established
#- An advocate should not swear an affidavit on contested issues where the client is available; such an affidavit is defective and liable to be struck out
Court orders
#- 1.The Notice of Motion dated 6th June 2026 is dismissed
- 2.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules (extension of time and stay pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Everline Rosa v Catherine Koriko, Benja Koriko & Daniel Koriko", Case Analysis (2026). ELC Case No. E004 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5985/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.