[2018] KEELC 2512 (KLR)
The court found that the application was unsigned and the supporting affidavit was not commissioned as required by law. Section 5 of the Oaths and Statutory Declarations Act mandates proper commissioning of affidavits, and failure to comply renders the affidavit and the application fatally defective. The court...
Source-derived case information.
- Citation
- [2018] KEELC 2512 (KLR)
- Parties
- Appellant: Edwin K. Too; Respondent: Paul K. Sitienei
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 6 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application
- Outcome
- application struck out as incompetent
- Judges
- A Ombwayo
- Legal Topics
- Defective Affidavit, Commissioning of Affidavits, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Edwin K. Too
Appellant
Paul K. Sitienei
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application
Legal Issues
- 1 Whether an unsigned application and an uncommissioned supporting affidavit render the application incompetent.
- 2 Whether the court can entertain an application that is not properly signed and commissioned.
Ratio Decidendi
The court found that the application was unsigned and the supporting affidavit was not commissioned as required by law. Section 5 of the Oaths and Statutory Declarations Act mandates proper commissioning of affidavits, and failure to comply renders the affidavit and the application fatally defective. The court relied on precedent to hold that such defects are not mere technicalities but go to the root of the application, making it incompetent. Consequently, there was nothing before the court for determination, and the application was struck out with costs.
Court Disposition
application struck out as incompetent
Orders
- The application dated 27.7.2017 is struck out with costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L APPEAL NO. 6 OF 2014
EDWIN K. TOO.............................................................APPELLANT
VERSUS
PAUL K. SITIENEI......................................................RESPONDENT
RULING
Before me is the application dated 27. 7.2017 which is not signed. It is supported by the affidavit of Edwin Kimeli Too, for its worth, as it is not commissioned. Section 5 of Oaths and Statutory Declaration Act Cap 15 provides as follows-
“Every Commissioner for Oaths before whom any oath or affidavit 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 affidavit is taken or made.”
In the case REGINA MUNYIVA NTHENGE -VS- KENYA COMMERCIAL BANK LTD (2005) eKLR, the Court stated-
“The second issue raised by the Applicant is that the application should be treated as unopposed because the replying affidavit is defective since it is not properly commissioned. Section 5 of the Oaths and Statutory Declaration Act provides that-
“Every Commissioner for Oaths before whom any oath or affidavit is taken or made … shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made in the jurat.”
“The affidavit is shown as having been sworn at Machakos in the presence of Leah Mbuthia Commissioner of Oaths on 13th October 2003 but whose stamp reads Nairobi. If the affidavit was sworn at Machakos, it should have been before a Commissioner for Oaths in Machakos and the stamp should show likewise. The only conclusion one can reach on looking at this affidavit is that the place the affidavit was sworn and where it was commissioned are two different places. That is irregular and unacceptable and that affidavit is, therefore, fatally defective as it was not sworn in the presence of a Commissioner for Oaths. It is likely that stamp was just affixed. This Court would have no alternative but strike off the replying affidavit as it is not properly commissioned and that means that the application would stand unopposed.”
The application herein is not signed and the supporting affidavit is not stamped. For the above reasons alone, the application is incompetent and a non-starter and ought to be struck out. I do find that there is nothing before the court for determination. The application is struck out with costs.
Dated and delivered at Eldoret this 29th day of June, 2018.
OMBWAYO
JUDGE