https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3724

Achieng v Atinga & 3 others (Environment and Land Appeal 1 of 2023) [2026] KEELC 3724 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEELC 3724 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Appeal 1 of 2023 JW Wanyonyi, J June 12, 2026 (FORMERLY MIGORI ELC A NO E008 OF 2022) Between Hilda Linet Achieng Appellant and Janet Akinyi Atinga 1st Respondent Japheth Angila Atinga 2nd Respondent Land Registrar Migori 3rd Respondent The Attornye General 4th Respondent Ruling 1.​The Appellant/Applicant has filed the application dated 8th December 2025 under certificate of urgency seeking for Orders as follows THAT:1.Spent2.​The Honorable court be pleased to Order for temporary stay of proceedings therein and executing of the impugned Decree of the Lower Court pending hearing and determination of the application.3.​This Honorable Court be pleased to order for a temporary stay of proceedings and execution of the impugned Decree of the Lower Court pending hearing and determination of Civil Appeal No. E277 of 2024 pending before the Court of Appeal Kisumu.4.Costs of the application. 2.​The application is supported by thirteen (13) grounds on the face of the application and the sworn the affidavit of Hilda Linet Sworn on the same date. 3.However, I have looked at the affidavit and I note that the same lacks a signature which I shall address shortly hereafter. 4.The affidavit contains 20 paragraphs to which she has attached the following:(a)Copy of judgment (Migori HCC Succ Cause No. 27 of 2018)(b)Notice of Appeal(c)Memorandum of Appeal(d)Photograph ​response To Application. 5.The 1st and 2nd Respondents filed a replying affidavit sworn on 15th December 2025 by one John E. Otinga and filed same day. 6.Prior thereto, on 8th December 2025 Counsels appeared before the then presiding Judge and the Court did issue directions and parties directed to file submission. Submissions By Parties 7.​The Appellant's Counsel filed submissions on 26/1/2026 wherein he states that the Appellant/Applicant is a widow of one DR. Polycarp Eric Wambi Atinga (Deceased) whose succession of his Estate was subject of Migori HCC Succession Cause No. 27 of 2018 formerly Nairobi H.C Family Division. Succession Cause No. 287 of 2015 ; that she lodged an objection for revocation of grant issued to the 1st Respondent; that her objection was dismissed and she lodged an appeal No. E277 of 2024 and before lodging the appeal she filed an application number E137 of 2024 where she sought stay but the same was dismissed as it was a negative decree, that during pendency of Succession proceedings Land Case ELC Number 728 of 2017 was filed and transferred to Rongo PMCC as ELC Number 24 of 2019 where Summary Judgment for eviction was rendered ; that was what triggered the appeal that the appeal herein is sub-judice in view of the pending appeal and the matter in the Court of Appeal is still substantively active. Her plea is for stay of proceedings. 8.The 1st and 2nd Respondent have raised an objection to jurisdiction stating that the Applicant's notice of motion forms part of pleadings for orders predicated in Kisumu Civil Appeal Number E277 of 2024, a matter that does not form part of the proceedings herein; that the application is an abuse of the Court process; the present application repackages same relief under a different appeal number and, finally, that the sub-stratum upon which prior stays were granted has been extinguished. 9.The 1st and 2nd Respondents also filed supplementary Submission reiterating the earlier filed Submission and referred to the Court of Appeal decision of Gaddy versus Casper, Air Chatter, Limited (Civil Appeal Number 7 of 1955 (1950) EACA 139 where the Judge erroneously addressed an issue that was not founded on the pleadings. It is their view that the present application improperly invites the Court to issue orders that fall within the Appellate Jurisdiction of the Court of Appeal.​issue For Determination 10.(a)whether the Application for stay is properly before this Court.(b)What orders should be made A. Whether the application for stay is properly before this courT. 11.As earlier mentioned, I will address the issue of the unsigned affidavit. 12.The Black's Law Dictionary defines an oath as follows:“An oath is a solemn declaration accompanied by a swearing to God or a revered person or thing that one's statement is true or that one will be bound to a promise..."The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false. 13.In the case of CMC Motors Group Ltd versus Bengeria Arap Korir T/A Marben School & Another (2013) eKLR:“Bearing that definition, the question that needs to be answered is whether Wando took an oath before Commissioner for Oaths. Looking at her affidavit, it would seem that she signed the affidavit in Nairobi and the Commissioner of Oaths signed it in Mombasa. It will therefore seem that her affidavit fails to comply with the requirements of section 5 Cap 15."It is not much an affidavit that is under oath. That being so the same is struck out. 14.Justice Mwangi Njoroge in the case Dardanelli & 6 Others v Tilito & 3 Others (Land Case E041 of 2024 (2025) KEELC 392) KLR held thus:“An affidavit procured in the manner alluded to by Counsel for the 1st and 2nd defendants would qualify as a proper affidavit provided it is accompanied by a proper certificate under Section 106. It is the opinion of the Court that lack of a certificate or certificates under Section 106 B with respect of the process followed in procuring the present affidavit procurement of the attendance of the deponent at the Commissioning table is fatal. The consequence is that I therefore strike out the supporting affidavit of Pasquale Trito dated 20 May, 23,2024. As the application dated May 23, 2024, cannot stand without any supporting affidavit, the same is struck out with costs." 15.​From a foregoing, it must be appreciated that an affidavit is a formal sworn statement of fact, signed by the deponent (or declarant) and witnessed as to the veracity of the deponent's signature by a taker of Oaths such as Commissioner or notary public. 16.An affidavit being evidence on Oath is subject to the provisions of the Evidence Act. 17.It is apparent that the same was presented before a commissioner without ascertaining whether there was a signature or not 18.​As it is now there is no affidavit before the Court and the application is bare as, legally, it is unsupported. 19.Since there is no proper document originating the application for stay, I will not belabor to address the other issues. 20.​My finding is that since there being no affidavit, in support, the Application for stay suffers the fate of striking out. 21.I now proceed to strike out the same with costs. RULING DATED AND DELIVERED VIA VIRTUAL PLATFORM ON 12TH JUNE 2026 BY JUSTICE JOHN WALTER WANYONYI.In the Presence of;Mr. Kisera for the Applicant, present.Akello for the 1st and 2nd Respondent – PresentAttorney General Absent.Court Assistant: Ms. Awino, present. JUSTICE JOHN WALTER WANYONYI-JUDGE