Abila v Oloo (Enviromental and Land Originating Summons 18 of 2022) [2025] KEELC 8024 (KLR)

technicalities. He added further that whereas Mr Okeyo was laying much emphasis on the replying afidavits not having been properly commissioned, a Commissioner of Oaths need not be in one ofice. 4. After addressing the Court orally, the parties were granted time to file their submissions which they did. 5. I have considered the oral and written submission by both Mr Okeyo and Mr Ouru on whether or not the replying afidavits by the Defendant and his witnesses should be struck out for ofiending the provisions of Section 5 of the Oaths and Statutory Declarations Act. That provision reads: “ 5: Every Commissioner for Oaths before whom any oath or afidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or afidavit is taken or made.” Section 8 of the same Act provides that: “ 8: A Magistrate or Commissioner for Oath may take the declaration of any person voluntarily making and subscribing it before him in the form in the Schedule.” Counsel for the Plaintifi made the following written submission in support of his oral application: “ By an oral application in Court on 18th March 2025, the Plaintifi/Applicant applied that the replying afidavit of Eddy Oloo dated 4th September 2022 and the afidavit evidence of Wilson Ogola and Anthony Ochieng Ocholla dated 10th September 2022 be struck out and/ or expunged from the record for failure to comply with mandatory provisions of Section 5 and Section 8 of the Oaths and Statutory Declarations Act. The basis of our application stemmed from the cross-examination in Court where the witnesses denied knowledge of the Commissioner for Oaths in question and also denied swearing the afidavits in Kakamega where they are stated to have been sworn. The afidavits before Court are sworn at Kakamega before one Peter W. Mugalo of P/105/4314/00. A look at the Advocates Search Engine indicates that the said Advocate practices at Kakai Mugalo & Co Advocate a firm based at Corner House Kimathi Street in Nairobi. In their cross-examination in Court, Eddy Oloo (PW2) (sic) stated that he signed the replying afidavit at Busia Villa Hotel and not in Kakamega as indicated in the jurat section of the afidavit. The witness equally denies ever meeting one Peter W. Mugalo who signed the document. DW3 (sic) on the other hand testified that he signed his afidavit at Korinda Junction and not in Kakamega as indicated in his evidence afidavit. He also denied knowledge of Peter W. Mugalo, the Commissioner for Oaths before whom the document is said to have been sworn.” Counsel then concludes his submissions in the penultimate paragraph by stating thus: “ We urge your Lordship to find and hold that the 3 afidavits before Court are in contravention of the mandatory provisions of Section 5 read together with Section 8 of the Oath and Statutory Declarations Act and proceed to have the same expunged from the record in line with the Supreme Court’s decision in Civil Application No 26 of 2018 – Gedion Sitelu Konchellah -v- Julius Lekakeny Ole Sunkuli & 2 others 2018 eKLR.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8024/eng@2025-11-18 2

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On the fiip side, Mr Ouru counsel for the Defendant stated as follows in paragraphs 4 and 5 of his submissions: “ 4: In particular, counsel stated that the jurat Section of the respective afidavits ofiends the provisions of section 5 of the Oaths and Statutory Declarations Act Cap 15 of the Laws of Kenya, in that while it is stating that the said afidavits were sworn in Kakamega, the 2 witnesses (the Respondent and DW3) stated that they signed the same within Busia Township. “ 5: Your Lordship gave parties an opportunity to orally highlight the application and later on retire to canvass the same further through written submissions. While Mr Okeyo counsel for the Applicant largely but preliminarily relied on the ruling in Mary Gathoni & Another - v - Frida Ariri Otolo & another, Civil Appeal No 66 of 2019 2020 eKLR (W. Musyoka J) and urged your Lordship to allow the application, Mr Ouru counsel for the Respondent preliminarily relied on the provisions of Artiles 50(1) of the Constitution of Kenya 2010 as read with 159(2) (a) (d) and (e) and further invited the Court, on a without prejudice basis, to take judicial notice of the fact that Commissioners for Oaths, being Advocates of the High Court of Kenya are mobile and can therefore administer Oaths anywhere within the borders of the Republic of Kenya.” Counsel for the Defendant then goes further in paragraph 7 of his submissions to state that the Plaintifi is taking advantage of the jurat sections of the replying afidavits which do not occasion any prejudice to the Plaintifi being mere deviation in form and procedures as was held in the case of Nicholas Kiptoo Arap Korir Salat -v- Independent Electoral & Boundaries Commission & Others 2013 eKLR. Counsel urged the Court not to allow the Plaintifi to employ tactics to deprive the Defendant of his property. 6. It is clear from the record that both the Defendant (who testified as DW2 (not PW2) as submitted by Mr Okeyo) and Anthony Ochieng Ocholla who testified as DW3 (not PW3 as submitted by Mr Okeyo) were cross-examined as to where they signed their respective replying afidavits. The Defendant (DW2) said the following when cross-examined by Mr Okeyo on 18th March 2023: “ I know an Advocate called Peter Mugalo. I met him in a hotel in Busia. It was called Busia Villa Hotel where I signed the replying afidavit in Busia. It was Commissioned in Kakamega. I agree that Busia and Kakamega are far apart.” On his part, when Anthony Ochieng Ocholla (DW3) was also cross-examined by Mr Okeyo on the same day, he said: “ I signed the afidavit in the Ofice of the Advocate in Busia. He has a Branch in Korinda. I do not know an Advocate called Peter Mugalo of Kakamega. I signed my afidavit in Busia not in Kakamega.” That issue was not raised by Mr Okeyo when he cross-examined the Defendant Wilson Ogolla Olendo (DW1). However, what is clear from the replying afidavits of the Defendant and his two witnesses is that they were all commissioned at Kakamega by an Advocate practicing under the name and Style of Peter W. Mugalo. Mr Okeyo has submitted, and it has not been rebutted, that a look at the Advocates Search Engine indicates that Advocate Peter W. Mugalo practices at Kakai Mugalo & Co Advocates a firm based at Corner House Kimathi in Nairobi. That must be taken as the oficial communication https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8024/eng@2025-11-18 3

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confirming where the said counsel practices from. And although Mr Ouru submitted, and rightly so, that an Advocate can administer Oaths anywhere, he did not rebut the assertion by Mr Okeyo that Mr Peter W. Mugalo’s ofice is infact situated at Corner House Kimathi and neither did he provide any information that Mr Peter W. Mugalo has another ofice at Korinda and also at Villa Hotel in Busia. Indeed, nothing would have been easier than calling the said Advocate to refute Mr Okeyo’s assertion which looks credible in the circumstances. 7. An oath is defined in Black’s Law Dictionary 10th Edition as: “ a solemn promise, often invoking a devine witness, regarding one’s future action or behaviour. A sworn declaration, such as the promise to tell the truth, in a Court of law.” All the replying afidavits by the Defendant and his witnesses Wilson Ogolla Olendo (DW1) and Anthony Ochieng Ogolla (DW3) show that they were commissioned before Advocate Peter W. Mugalo at Kakamega. However, when he was re-examined by Mr Okeyo, as I have already stated above, the Defendant said he met the Advocate at Villa Hotel in Busia while his witness Anthony Ochieng Ocholla (DW3) not only said that he did not know Peter W. Mugalo but also added that he signed his replying afidavit in Busia. In the absence of any evidence showing that Advocate Peter W. Mugalo has any ofice in Busia or Kakamega and also in light of the un-rebutted evidence that the said Advocates ofice is situated in Nairobi, this Court must find, which I hereby do, that the afidavits of the Defendant and his witnesses are defective. The replying afidavit by the Defendants witnesses could not have been sworn in Kakamega yet the said witnesses claim to have met the Advocate in Busia. The said Advocates also has no ofice in Kakamega as shown on the replying afidavits. It is not controverted that his ofice is in Nairobi. It follows that the replying afidavits by the Defendant and his witnesses Wilson Ogolla Olendo (DW1) and Anthony Ochieng Ogolla (DW3) contravene the provisions of Sections 5 and 8 of the Oaths and Statutory Declarations Act and are therefore defective. Faced with a similar situation in the case of Gideon Sitelu Konchellah -v- Julius Lekakeny Ole Sunkuli & 2 Others Civil Application No 26 of 2018 [2018 KESC 58 KLR] the Supreme Court addressed itself as follows at paragraphs 8 of it’s ruling thus: “ We have no hesitation in finding that the purported Replying afidavit filed by the 1st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an afidavit. Hence it has no legal value in the matters before us. We have checked all the eight copies of the Replying Afidavit as filed in the Court Registry and confirmed that none of the copies was signed, commissioned and dated. Consequently, as the same is defective, it is deemed that there is no Replying Afidavit on record filed by the 1st Respondent.” The defects alluded to by Supreme Court are of course difierent from those obtaining in this case. However, there is no gainsaying that the replying afidavits by the Defendant and his witnesses are defective and are not afidavits within the law. They must be struck out and expunged from the record. 8. Counsel for the Defendant has asked me, instead, to be guided by the decision in the Ugandan Court of Appeal in the case of Saggu -v- Roadmaster Cycles (U) Ltd 2002 I EA 258 where Mpagi – Bahigeine J held that: “ It is trite that the defect in the jurat or any irregularity in the form of the afidavit cannot be allowed to vitiate an afidavit in view of Article 126(e) of the 1995 Constitution which stipulates that substantive justice shall be administered without undue regard to technicalities. I should perhaps mention that the jurat is the short statement at the foot of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8024/eng@2025-11-18 4

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the afidavit indicating when, where and before whom it was sworn. It would follow that the learned judge had the power to order that the undated afidavit be dated in Court and that the afidavit be sworn before putting it on record. He was also correct to penalize the ofiending party in costs.” I do not see the Ugandan case of Saggu -v- Roadmaster Cycles Ltd (supra) aiding the Defendant in this case at all. Firstly, this Court must find, which I hereby do, that the decision of a five Bench Court of the Supreme Court Of Kenya must take precedence over a three-Judge Bench of the Court of Appeal in Uganda all things being equal. 9. Secondly, and most importantly, the circumstances in the case of Saggu -v- Roadmasters Cycles (U) Ltd (supra) are markedly difierent from those in the case before me. In that case, a preliminary objection had been raised that an afidavit was not dated. That defect was discovered at the preliminary stages when the jurisdiction of the Court to determine the dispute was being canvassed. The Court went on to state, citing Ibrahim -v- Sheikh Bros Investment Ltd 1973 EA 118 at page 120 where it was held that the Court could always allow a party to re-swear and date an afidavit as this would not go to the jurisdiction of the Court. The Court, in Saggu -v- Roadmaster Cycles (U) Ltd (supra) also went on to state that: “ Section 8 of the Oaths Act (chapter 52) which renders it mandatory to date the afidavit before tendering it in a Court simply means that an afidavit cannot be used without dating it or indicating where it was sworn and before whom. The errors or omissions regarding the date, place and the commissioner, cannot vitiate an application.” In this case, this Court is not dealing with Preliminary Objection. This is a case where the Defendant and his witnesses have already testified and been cross and re-examined at length over the contents of their afidavits. It is not a case of simply dating and indicating where the three afidavits were sworn and before who. Rather, it is a case where it has clearly emerged from the examination of the Defendant and his witnesses that they could not even have appeared before the Advocate who allegedly commissioned those afidavits. In brief, the veracity of those afidavits has already been tested and found wanting. The remedy of dating and stating where and by whom the defective afidavits were sworn, even if it was an option, it is no longer available to the Defendant and his witnesses. 10. The up-shot of all the above is that this Court must up-hold the Plaintifi’s application and strike out the replying afidavits of the Defendant dated 4th September 2022 and his two witnesses namely Wilson Ogolla Olendo (DW1) and Anthony Ochieng Ogolla (DW3) both dated 10th September 2022. The same are expunged from the record. There shall be no orders as to costs. RULING DATED, SIGNED AND DELIVERED ON THIS 18TH DAY OF NOVEMBER 2025 BY WAY OF ELECTRONIC MAIL. .................................................................. BOAZ N. OLAO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8024/eng@2025-11-18 5

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