[2025] KEELC 3990 (KLR)
The court found that while the previous Replying Affidavit was struck out for non-compliance with the Oaths and Statutory Declarations Act, the supporting affidavit to the present application was properly commissioned and sealed. The intended Replying Affidavit was only a draft at this stage. To ensure that the...
Source-derived case information.
- Citation
- [2025] KEELC 3990 (KLR)
- Parties
- Applicant: Mathews Ondiek Chiagra; Applicant: Silvanus Owino Koyo; Respondent: KCA University; Respondent: National Land Commission; Respondent: County Government Of Kisumu; Respondent: Housing, And Urban Development; Respondent: Director Of Survey Of Kenya; Respondent: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Petition E001 of 2025
- Procedural Posture
- Environment and Land Petition / Ruling on Interlocutory Application for Leave to File Replying Affidavit
- Outcome
- application allowed
- Judges
- E Asati
- Legal Topics
- Affidavit Commissioning, Leave to File Affidavit, Procedural Compliance, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathews Ondiek Chiagra
Applicant
Silvanus Owino Koyo
Applicant
KCA University
Respondent
National Land Commission
Respondent
County Government Of Kisumu
Respondent
Housing, And Urban Development
Respondent
Director Of Survey Of Kenya
Respondent
Attorney General
Respondent
Procedural Posture
Environment and Land Petition / Ruling on Interlocutory Application for Leave to File Replying Affidavit
Legal Issues
- 1 Whether the applicant should be granted leave to file a fresh Replying Affidavit after the previous one was struck out for non-compliance with statutory requirements.
- 2 Whether the supporting and intended Replying Affidavits comply with the Oaths and Statutory Declarations Rules.
Ratio Decidendi
The court found that while the previous Replying Affidavit was struck out for non-compliance with the Oaths and Statutory Declarations Act, the supporting affidavit to the present application was properly commissioned and sealed. The intended Replying Affidavit was only a draft at this stage. To ensure that the matter is determined on its merits and substantive justice is achieved, the court exercised its discretion to allow the applicant to file and serve a fresh Replying Affidavit. The court emphasized the importance of compliance with procedural requirements but prioritized the need for a fair hearing and determination based on evidence.
Court Disposition
application allowed
Orders
- The applicant is granted leave to file and serve a Replying Affidavit to the petitioners’ application dated 4/4/2025 within three (3) days.
- Costs of the application awarded to the petitioners.
Full Case Text
Judgment text and source record
32 paragraphs
Chiagra & another v KCA University & 5 others (Environment & Land Petition E001 of 2025) [2025] KEELC 3990 (KLR) (22 May 2025) (Ruling)
Neutral citation: [2025] KEELC 3990 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisumu
Environment & Land Petition E001 of 2025
E Asati, J
May 22, 2025
Between
Mathews Ondiek Chiagra
1st Petitioner
Silvanus Owino Koyo
2nd Petitioner
and
KCA University
1st Respondent
National Land Commission
2nd Respondent
County Government Of Kisumu
3rd Respondent
Housing, And Urban Development
4th Respondent
Director Of Survey Of Kenya
5th Respondent
Attorney General
6th Respondent
Ruling
1. The substantive order sought by the Respondent in the Notice of Motion application dated 16/5/2025 is that the court be pleased to grant the applicant leave to file a fresh Replying Affidavit in response to the Petitioners’ application dated 4/4/2025, the previous Replying Affidavit having been struck out.
2. The application was opposed on the grounds contained in the petitioners’ Statement of Grounds of Opposition dated 21/5/2025 namely; that both the Supporting Affidavit to the application and the intended Replying Affidavit are incurably defective and incompetent as they offend the mandatory provisions of Rule 9 of the Oaths and Statutory Declarations Rules, that unmarked and unsealed annextures are of no value to the application to which they relate, that the intended Replying Affidavit has not been stamped and executed by a Commissioner for Oaths in the manner contemplated in the Third Schedule of the Oaths and Statutory Declaration Rules and that the application lacks merit as it does not meet the threshold for grant of the orders sought.The application was urged orally on 21/5/2025.
3. I have considered the application, the grounds of opposition and the rival submissions. It is not disputed that the applicant did file a Replying Affidavit to the Petitioners’ application dated 4/4/2025 which was struck out for being in contravention of the provisions of the Oaths and Statutory Declarations Act. The applicant now seeks for a chance to file fresh Replying Affidavit to respond to the petitioners’ application.
4. The petitioners’ objection is centered around the commissioning of the Affidavits and the annextures thereto. The court has perused the Supporting Affidavit to the application and noted that the same was sworn before a Commissioner for Oaths who executed the same and sealed it with his seal. And in respect of the intended Replying Affidavit, the applicant submitted it was only a draft.
5. To enable the court to reach an outcome based on merits and evidence and to ensure substantive justice is served, the application is hereby allowed in the following terms:i.The applicant is hereby granted leave to file and serve a Replying Affidavit to the petitioners’ application dated 4/4/2025 within three (3) days hereof.ii.Costs of the application to the petitioners.Orders accordingly.
RULING, DATED AND SIGNED AT KISUMU AND READ VIRTUALLY THIS 22ND DAY OF MAY, 2025 THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:_Maureen - Court Assistant.Mrs Koome for the 1st Respondent.Billy Janji for the Petitioners.