Pepo Huru Lifestyle Ltd v Bertoni & another

3. The Applicant further asserts that the trustees of the estate, the beneciaries, Vale Limited and the current registered proprietor of Kili/Madeteni/898, being a subdivision of Kili/Madeteni/399, ought to be joined to the present proceedings so that the questions concerning title, the validity of the sale agreement and the subsequent leasing arrangement may be determined comprehensively and with nality. Its case is that proceeding with the civil suit before the criminal proceedings are concluded would expose the parties to the risk of inconsistent ndings, possible self-incrimination or compelled disclosure of information, and the practical diculty of joining and meaningfully involving the estate while the criminal case remains pending. The Applicant characterises the continuation of the civil proceedings in those circumstances as capable of producing a judgment which would amount to a pyrrhic victory because the underlying question of title and the alleged intermeddling would remain unresolved. 4. The Applicant contends that the balance of convenience favours a stay because the 1st Defendant remains in occupation of the premises and, according to the application, is not paying rent, while the Plainti, the estate and its beneciaries allegedly stand to suer irreparable prejudice if the suit proceeds without their full participation. It is consequently urged that the criminal proceedings, which are said to go to the root of title and intermeddling, should rst be concluded so that the estate and other necessary parties may thereafter be joined and the entire controversy determined without fragmentation or the possibility of conicting ndings. 5. The application is supported by the adavit of Guido Bertoni. The deponent maintains that he is competent to swear the adavit and relies upon an authority said to have been executed by the 2nd Defendant. He sets out the history of the tenancy and the subsequent agreement for purchase of the property from the late Chipande Chirao Horomwe, states that payments continued after the deceased's death, and alleges that the estate subsequently concealed the transaction, obtained a grant, vested the property in itself, subdivided it and dealt with portions thereof. He further states that the Plainti has pleaded that the Defendants had no power or title to lease the premises, while the Plainti's counterclaim seeks, among other reliefs, rent arrears, mesne prots, damages and vacant possession. 6. The application is opposed by the Plainti in the main suit through the replying adavit of Stefano Pelloni, its Managing Director and duly authorised ocer. The Respondent contends, at the outset, that the application is misconceived and that the Supporting Adavit is fatally defective. In particular, the Respondent draws attention to paragraph 17 thereof, where the deponent expressly states that he is in Peschiera del Garda, Italy, and appeared before the Commissioner for Oaths virtually for purposes of being sworn and executing the adavit, while the jurat records that the adavit was sworn by himself at Malindi. The Respondent therefore contends that the adavit does not disclose the legal basis or evidentiary mechanism by which the alleged virtual commissioning took place and is not accompanied by the requisite certicate contemplated under Section 106B of the Evidence Act. 7. On the merits of the application, the Respondent disputes the assertion that continuation of the civil proceedings would prejudice the Defendants in the criminal case. It points out that the persons charged with intermeddling are the trustees of the estate and not the Defendants in the present suit, and therefore contends that the alleged danger of self-incrimination or compelled disclosure by the Defendants is illusory. The Respondent further maintains that the present suit has been pending since 2023, whereas the criminal charge was preferred only on 24th September 2025, and that the Defendants, having participated in the civil proceedings for several years, cannot now invoke the subsequent institution of criminal proceedings as a basis for halting the suit indenitely. 8. The Respondent also contends that the criminal proceedings cannot confer any assistance upon the Defendants in establishing their asserted right to lease the premises. On the contrary, it is argued that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6140/eng@2026-10-01 2

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charge sheet itself concerns the transaction upon which the Defendants seek to anchor their alleged title and consequently reinforces the Plainti's contention concerning the root of title. The Respondent further maintains that the it does not oppose the joinder of any party genuinely shown to be necessary, and that the proper procedural avenue for such joinder is an application under Order 1 Rule 10 of the Civil Procedure Rules rather than a stay of the entire suit. 9. The Respondent's position, therefore, is that the alleged risks of fragmentation, inconsistent ndings and prejudice are misconceived. In its view, the civil proceedings are precisely the forum in which the questions of title, validity of the sale, validity of the lease and the reliefs claimed by the respective parties are to be adjudicated. It further asserts that it is the Plainti that would suer prejudice from a stay because such an order would postpone its claim for recovery of EUR 42,000 and Kshs. 11,000,000, allow the Defendants' contingent counterclaim for mesne prots to continue accruing, and expose the suit to the ordinary risks attendant upon delay, including deterioration of evidence and loss of witnesses. 10. Having considered the application, the Supporting Adavit, the Replying Adavit and the material placed before the Court, I identify two issues for determination as follows: a. Whether the Supporting Adavit of Guido Bertoni is competent and properly before the Court; b. If the adavit survives that inquiry, whether the circumstances warrant the stay of the proceedings pending determination of the criminal case. 11. In my view, the determination of the rst issue ought to precede the second issue because the application is substantially founded upon the matters deposed to in the Supporting Adavit. 12. The objection to the Supporting Adavit is not a mere complaint concerning form. It goes to the very manner in which the adavit was purportedly sworn and commissioned. Paragraph 17 of the adavit contains a material admission that the deponent was physically in Peschiera del Garda, Italy, but appeared before the Commissioner for Oaths virtually for purposes of being sworn and executing the adavit. Yet the jurat states that the adavit was sworn at Malindi on 6th June 2026. That discrepancy, when juxtaposed against the admitted physical location of the deponent, places squarely before the Court the question whether the alleged virtual commissioning was established in accordance with the law. 13. Section 5 of the Oaths and Statutory Declarations Act is unequivocal. It provides that: “ Every commissioner for oaths before whom any oath or adavit 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 adavit is taken or made.” 14. This statutory requirement assumes signicance in the present matter because the jurat states that the adavit was sworn at Malindi, notwithstanding the deponent's own averment that he was in Italy. The same provision was expressly considered in Dardanelli & 6 others v Tilito & 3 others (Land Case E041 of 2024) [2025] KEELC 392 (KLR), where the Court examined the legality of an adavit allegedly commissioned through a virtual interaction. The said decision is cited with authority in Gikonyo v Director of Public Prosecutions & another [2025] KEHC 15582 (KLR) and In re Estate of Richard Kanampiu Nanchu (Deceased) [2025] KEHC 16491 (KLR). 15. It is material that Dardanelli (supra) did not hold that the advent of technology, by itself, renders virtual commissioning impermissible. Rather, the Court recognised the distinction between a properly https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6140/eng@2026-10-01 3

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regulated virtual court session and the solemn process of administering an oath. An adavit contains sworn evidence and exposes the deponent to the consequences of perjury; consequently, the Commissioner must be satised as to the identity of the deponent, his understanding of the document and his armation that the contents are true. The Court accordingly treated the question of the deponent's appearance before the Commissioner as one of substance rather than an inconsequential procedural technicality. 16. The reasoning is particularly apposite to the present circumstances because the diculty does not end with the assertion that the deponent appeared virtually. Where virtual commissioning is alleged, the evidentiary basis for the alleged online interaction must be disclosed. It was material to establish, among other things, how the deponent was identied, whether the Commissioner actually interacted with him, whether the contents were read and acknowledged, and what process was employed in the electronic execution and transmission of the adavit. Mere assertion from the Bar could not supply that evidentiary foundation because submissions do not constitute evidence. 17. More importantly, Section 106B (1) of the Evidence Act provides, in material part, that information contained in an electronic record produced by a computer shall be deemed to be a document where the statutory conditions are satised and shall be admissible without further proof as evidence of its contents where direct evidence would be admissible. The Court treated the electronic signature and the electronically stored contents of the adavit as information falling within that statutory framework. It consequently required satisfactory evidence demonstrating that there had been a live online appearance of the deponent before the Commissioner for Oaths. 18. Section 106B (4) is equally material. It requires, where a statement is sought to be admitted by virtue of that section, a certicate identifying the electronic record and describing the manner in which it was produced, giving appropriate particulars of the device involved, addressing the statutory conditions concerning the electronic record and bearing the signature of the person occupying a responsible position in relation to the relevant device or activities. The statutory certicate is therefore not ornamental. It supplies the evidentiary foundation upon which the Court may accept an electronically transmitted, executed and returned document as authentic. 19. The Court in Dardanelli (supra) consequently held that where an adavit is transmitted electronically to a deponent, executed, returned and downloaded before commissioning, the process must be supported by the appropriate certicate under Section 106B. The absence of such certicate was held to be fatal because the Court could not, merely from the face of the adavit or from counsel's assertions, satisfy itself that the electronic process had in fact culminated in the deponent's attendance before the Commissioner. The Court therefore struck out the adavit and, because the application could not stand without its supporting adavit, struck out the application as well. 20. I respectfully adopt my reasoning in the said case to the proceedings herein. In the present matter, the deponent has himself supplied the factual basis for the objection by expressly stating that he was in Peschiera del Garda, Italy, and that he appeared before the Commissioner virtually. The jurat, however, states that the adavit was sworn at Malindi on 6th June 2026. There is no certicate under Section 106B of the Evidence Act demonstrating the electronic process by which the adavit was transmitted, executed, returned and commissioned, nor is there any certicate establishing the circumstances of the alleged live virtual attendance before the Commissioner for Oaths. The evidentiary gap is therefore not one that can be cured by counsel's submission or by invoking the general permissibility of electronic signatures. 21. The signicance of the omission is heightened by the statutory obligation imposed upon a Commissioner for Oaths under Section 5 of the Oaths and Statutory Declarations Act to state truly https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6140/eng@2026-10-01 4

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the place at which the oath or adavit is taken or made. The jurat in the present adavit records Malindi as the place of swearing, notwithstanding the deponent's express assertion that he was in Italy and participated virtually. Without the requisite evidentiary material demonstrating how that virtual process occurred and how the deponent was placed before the Commissioner for purposes of the oath, the Court cannot safely treat the adavit as having been properly sworn and commissioned. The defect consequently goes to the integrity and competence of the adavit itself. 22. I am alive to the constitutional command under Article 159(2)(d) that justice shall be administered without undue regard to procedural technicalities. That provision, however, cannot be invoked to validate a process where the law prescribes substantive safeguards attending the taking and commissioning of sworn evidence. The requirement for proof of the electronic process is intended to preserve the authenticity of the evidence, protect against disputed execution and ensure that the Commissioner actually discharged the statutory function entrusted to that oce. It would defeat those safeguards to characterise their absence as a mere technicality. 23. I therefore nd that the Supporting Adavit of Guido Bertoni dated 6th June 2026 is fatally defective for want of the certicate contemplated under Section 106B of the Evidence Act in circumstances where its deponent admittedly appeared before the Commissioner for Oaths virtually from Italy. The adavit is accordingly struck out. Once the Supporting Adavit is removed from the record, the application is left without the evidentiary foundation upon which the substantive relief of stay is sought. 24. Having reached that conclusion, there is no occasion for the Court to embark upon an extensive determination of the second issue concerning whether the civil proceedings ought to be stayed pending the criminal proceedings. Any such consideration would be academic because the application, in its present form, cannot survive the striking out of its Supporting Adavit. The Court therefore declines to determine the merits of the proposed stay, leaving those substantive questions open for determination should a competent application be subsequently presented in accordance with the law. 25. In the premises, I make the following orders: a. The Supporting Adavit of Guido Bertoni purportedly sworn on 6th June 2026 is hereby struck out; b. The Notice of Motion dated 6th June 2026, consequently being unsupported by a competent adavit, is hereby struck out; c. The application dated 6th June 2026 is dismissed with costs to the Plainti/Respondent. d. The present suit shall be mentioned on 22/10/26 for directions. DATED, SIGNED, AND DELIVERED AT MALINDI ON THIS 1ST DAY OF OCTOBER 2026 MWANGI NJOROGE JUDGE ELC, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6140/eng@2026-10-01 5

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