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ELRCPartially AllowedNot stated in the ruling (Petition filed on 16th November 2016)· [2021] KEELRC 1168 (KLR)

Essau Kiora Mjomba & 33 others v Attorney General [2021] KEELRC 1168 (KLR)

Environment and Land Court? - High Court of Kenya at Mombasa (Constitutional Petition)
29 July 2021
618 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out affidavits sworn by people who were not parties to the case, but refused to remove petitioners whose duplication claim lacked proof.

What this practically means

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Executive summary

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This ruling by the High Court at Mombasa (Linnet Ndolo, J) determines a Notice of Motion dated and filed on 8th April 2021 by the Respondent in a constitutional Petition originally filed on 16th November 2016 and amended on 20th January 2020 to enjoin thirty-five Petitioners. The Respondent, through Special State Counsel G.K Angwenyi, sought a finding that five persons (Paul Kalama Mwakodi, Newland Ngome Akilimali, Stephen Charo Koi, Peter Karwigi Migwi and Kuuza Omari Mutta) were strangers to the Petition and orders striking out their supplementary and supporting affidavits; and further orders striking out the Petitions of Winston Sirya Pekesheh, Michael Camilus Sandys Kipunde and Emmanuel Michael on the ground that they were also Petitioners in Mombasa High Court Constitutional Petition No 182 of 2019, in which the cause of action and reliefs were said to be the same. The Petitioners did not respond to the Motion. The court found on the face of the record that the five deponents were not parties to the Petition, that their affidavits were stray, and struck them out. However, because the Respondent did not avail the pleadings in Petition No 182 of 2019 to substantiate the alleged duplication, the court declined to strike out the three named Petitioners. The court made no order for costs. The Motion was thus partially allowed.

Key legal issues

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01

Whether affidavits sworn by non-parties (strangers) to a petition should be struck out

Holding

The affidavits of persons who are not parties to the Petition are stray and are struck out

Reasoning

The court examined the record and found on its face that Paul Kalama Mwakodi, Newland Ngome Akilimali, Stephen Charo Koi, Peter Karwigi Migwi and Kuuza Omari Mutta were not named as parties to the amended Petition, which listed thirty-five Petitioners. Having been sneaked in without a formal application enjoining them as parties, their supporting and supplementary affidavits had no place on the record and were accordingly struck out. The Petitioners did not respond to the Motion, so the averment stood uncontroverted.

p. 3
02

Whether three Petitioners who allegedly filed a similar petition elsewhere should be struck out of this Petition

Holding

The prayer to strike out the three Petitioners was declined for want of supporting material

Reasoning

The Respondent asserted that Winston Sirya Pekesheh, Michael Camilus Sandys Kipunde and Emmanuel Michael were also Petitioners in Mombasa High Court Constitutional Petition No 182 of 2019 and that the cause of action and reliefs were the same. However, the Respondent did not avail the pleadings in that petition to support the averment. In the absence of that documentary proof, the court could not verify the alleged duplication and declined to strike the three Petitioners out of the Petition.

p. 3

Legal principles established

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  • A person who is not a party to a petition cannot swear affidavits in support of it; such affidavits are stray and liable to be struck out from the court record
  • A party seeking to strike out pleadings on the basis of duplication with another suit must avail the pleadings in that other suit to prove the duplication

Court orders

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  1. 1.The supplementary affidavits sworn by Paul Kalama Mwakodi, Newland Ngome Akilimali, Stephen Charo Koi and Peter Karwigi Migwi, and the supporting affidavit sworn by Kuuza Omari Mutta, are struck out from the court record as they are strangers to the Petition
  2. 2.The prayer to strike out the names of Winston Sirya Pekesheh, Michael Camilus Sandys Kipunde and Emmanuel Michael from the Petition is declined
  3. 3.No order for costs
Jurisdiction invoked
Original constitutional jurisdiction of the High Court over the Petition; the ruling determines an interlocutory Notice of Motion filed in the Petition

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, "Essau Kiora Mjomba & 33 others v Attorney General [2021] KEELRC 1168 (KLR)", Case Analysis (2021). Not stated in the ruling (Petition filed on 16th November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1168/eng@2021-07-29

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