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MagistrateDismissedNot stated in the judgment· [2025] KEMC 339 (KLR)

Chepkurui (Suing on Behalf of the Estate of the Late Christopher Lagat) v Ngeno & 7 others (Environment and Land Case 207 of 2019) [2025] KEMC 339 (KLR)

Magistrates' Court (Kenya)
13 November 2025
ANAloyce Peter Ndege
800 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a challenge to auctioneers' charges and execution because the supporting affidavit was undated, showing strict procedural compliance is not optional.

What this practically means

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Executive summary

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The plaintiff/applicant moved the court by Notice of Motion dated 29/08/2025, invoking sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Orders 21 and 22 of the Civil Procedure Rules, the Auctioneers Act and Rule 55 of the Auctioneers Rules. The applicant sought setting aside of the taxation of a Bill of Costs dated 19/04/2024 and the resulting Certificate of Costs dated 28/02/2025 for want of service of the Bill and Notice of Taxation, striking out auctioneer's charges of Kshs. 89,900/- demanded by Bama Auctioneers as excessive, a declaration that execution by Bama Auctioneers on 12/08/2025 was irregular and unlawful given re-issued warrants to Sanjomu Auctioneers, and lifting or staying of warrants of attachment, proclamations and consequential execution steps. The applicant complained that taxation proceeded ex parte contrary to Paragraph 13A of the Advocates Remuneration Order and Article 50(1) of the Constitution, and that Bama Auctioneers continued acting despite the respondent's 23/07/2025 request for re-issuance of warrants to Sanjomu Auctioneers, risking unlawful sale and double execution. The court, however, found the Supporting Affidavit undated, contrary to Section 5 of the Oaths and Statutory Declaration Act, which requires the commissioner for oaths to state the place and date of swearing on the jurat. Relying on Charles Muturi Mwangi v Invesco Assurance Co. Limited and Nicholas Kiptoo arap Kenga Salat v IEBC, the court held the provision mandatory, the defect not a technicality curable under Article 159, and struck out the affidavit. The application, left bare and incurably defective, was dismissed with each party bearing their own costs. The substantive complaints on taxation, auctioneer's charges and execution were not determined on the merits.

Key legal issues

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01

Admissibility of an undated affidavit

Holding

The undated Supporting Affidavit is inadmissible and must be struck out for violating Section 5 of the Oaths and Statutory Declaration Act

Reasoning

Section 5 of the Oaths and Statutory Declaration Act (Cap 15) requires a commissioner for oaths to state truly on the jurat the place and date the affidavit is taken or made. Relying on Charles Muturi Mwangi v Invesco Assurance Co. Limited and Nicholas Kiptoo arap Kenga Salat v IEBC, the court held these are mandatory statutory provisions with no discretion to vary, and the defect is not curable under Article 159.

p. 2
02

Consequence of striking out the supporting affidavit on a Notice of Motion

Holding

With the supporting affidavit struck out, the application is left bare and incurably defective and must fail

Reasoning

It is trite law that a Notice of Motion must be accompanied and supported by a valid affidavit. Where the validity of the supporting affidavit is dubious for want of veracity in its commissioning, the application does not stand the test of law and process and must be dismissed.

p. 3

Legal principles established

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  • An affidavit that does not state the date of swearing on the jurat violates a mandatory statutory provision under Section 5 of the Oaths and Statutory Declaration Act and is inadmissible; the defect is not a mere technicality curable under Article 159 of the Constitution
  • Defects in affidavits are not mere technicalities but non-compliance with the law, and Article 159 of the Constitution cannot be relied upon to oust rules of procedure
  • A Notice of Motion must be supported by a valid affidavit; where the supporting affidavit is inadmissible, the application is bare and incurably defective

Court orders

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  1. 1.The application is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A & 63(e)
  • Civil Procedure RulesOrders 21 & 22
  • Auctioneers Act No. 5 of 1996Not specified
  • Auctioneers RulesRule 55 and 4th Schedule
  • Oaths and Statutory Declaration Act Cap 15Section 5
  • Advocates Remuneration OrderParagraph 13A
  • Constitution of KenyaArticles 50(1) and 159

Cases cited (3)

  • Charles Muturi Mwangi v Invesco Assurance Co. Limited
    Cause No. 128 of 2011
  • Nicholas Kiptoo arap Kenga Salat vs Independent Electoral and Boundaries Commission and 6 Others
    2013 eKLR
  • Justus Achinga Kebari & 21 others vs The Attorney General
    Pet. No. 2 of 2017
Jurisdiction invoked
Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act; Orders 21 & 22 of the Civil Procedure Rules; Auctioneers Act No. 5 of 1996; Rule 55 of the Auctioneers Rules

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, "Chepkurui (Suing on Behalf of the Estate of the Late Christopher Lagat) v Ngeno & 7 others (Environment and Land Case 207 of 2019) [2025] KEMC 339 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/339/eng@2025-11-13

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