https://new.kenyalaw.org/akn/ke/judgment/keca/2026/932

Heldo Foodstuff Limited & 2 others v Kiptugen & 7 others (Civil Appeal (Application) E055 of 2023 & Civil Appeal E034 & E200 of 2021 (Consolidated)) [2026] KECA 932 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 932 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal (Application) E055 of 2023 & Civil Appeal E034 & E200 of 2021 (Consolidated) PM Gachoka, WK Korir & L Ndolo, JJA May 15, 2026 Between Heldo Foodstuff Limited Applicant and Daudi Kiptugen 1st Respondent Commissioner of Lands 2nd Respondent Chief Land Registrar, Nairobi 3rd Respondent The Attorney General 4th Respondent County District Land Registrar Uasin Gishu, Eldoret 5th Respondent Haron Chepkilot Kipsang t/a Heldo Foodstuff 6th Respondent Kiptui Kipchilat (As Representative of the Estate of Leah Jelagat - Deceased) 7th Respondent As consolidated with Civil Appeal E034 of 2021 Between Haron Chepkilol t/a Heldo Foodstuff Limited Applicant and Daudi Kiptugen 1st Respondent Commissioner of Lands 2nd Respondent Chief Land Registrar, Nairobi 3rd Respondent The Attorney General 4th Respondent County District Land Registrar Uasin Gishu, Eldoret 5th Respondent Haron Chepkilot Kipsang t/a Heldo Foodstuff 6th Respondent Silas Kiptui Kipchilat (As representative of the Estate of Leah Jelagat - Deceased) 7th Respondent As consolidated with Civil Appeal E200 of 2021 Between Silas Kiptui Kipchilat (As the Personal Representative of the Estate of Leah Jelagat - Deceased) Applicant and Daudi Kiptugen 1st Respondent Commissioner of Lands 2nd Respondent Chief Land Registrar, Nairobi 3rd Respondent The Attorney General 4th Respondent County District Land Registrar Uasin Gishu, Eldoret 5th Respondent Haron Chepkilot Kipsang t/a Heldo Foodstuff 6th Respondent Silas Kiptui Kipchilat (As Representative of the Estate of Leah Jelagat - Deceased) 7th Respondent (Being an application for review and setting aside of the judgment and order of the Court of Appeal at Nakuru (Musinga, (P), Sichale & Ochieng, JJ.A) delivered on 15th December 2023. in Civil Appeal No. E034 of 2021 As consolidated with Civil Appeal No. E034 and E200 of 2021) Ruling 1.Before us is a Notice of Motion dated 23rd March 2026, the applicant, Heldo Foodstuff Limited, seeks review and setting aside of the judgment of this Court at Nakuru, Musinga (P), Sichale & Ochieng, JJ.A, delivered on 15th December 2023. The Motion is supported by an affidavit sworn by Heldo Foodstuff Limited, and we shall revisit this issue later in the ruling. 2.It is also premised on the grounds that there exist errors of law in the judgment that have occasioned real injustice, failure or a miscarriage of justice. Additionally, it is argued that it is in the public interest that the judgment be reviewed to accord justice to the applicant herein, who stood to suffer substantial injustice should the application not be allowed. 3.The applicant seeks the following prayers:“1...... Spent;2.That the Court be pleased to review and set aside its judgment delivered on 15th December 2023 thus correcting errors going to the substance of the appeal resulting in the failure/miscarriage of justice.3.That the appeal be heard afresh and judgment rendered accordingly or in the alternate, the judgment on record be substituted with one factoring the corrections sought for in his review.4.That the costs of this application be in the review and the appeal.” 4.When the application came up for hearing, Mr. Shadrack Kimitei Kemboi, a director of the applicant was present. Learned counsel Mr. Bundotich for the 1st respondent; Mr. Arusei for the 6th respondent; and Mr. Wambua Kigamwa for the 7th respondent were also present. Mr. Bundotich informed the Court that he encountered challenges in filing his response as his law firm had not been mapped on the CTS digital platform. On his part, Mr. Arusei informed the Court that another application for review arising from the same judgment is pending in Civil Appeal (Application) E034 of 2021. 5.The Court on its own motion brought to the attention of the applicant a preliminary issue on the competency of the application; whether a company can swear an affidavit in support of the application. The director’s only answer was that he owns the plot the subject of the suit and was in possession of the original title, displayed to the Court. This brings to the fore the problems that courts face when applicants act in person. That said, it is also true that when a party opts to act in person the Rules of procedure apply in equal measure and the Court cannot shut its eyes to a glaring and an inexcusable irregularity. 6.We have reviewed the application, the supporting affidavit as well as the documents annexed thereto. Before dealing with the merits or otherwise of the application, it is imperative that we dispose of the preliminary issue of the competency of the supporting affidavit. 7.Rule 44 of the Court of Appeal Rules, 2022 provides that applications to this Court shall be by way of a Notice of Motion that shall substantively be in Form A as set out in the First Schedule. Rule 45 states that the application shall be supported by one or more affidavits of the applicant. The question that arises is whether a company, as a legal person, can swear an affidavit. 8.The administering of oaths and taking of declarations is governed by the Oaths and Statutory Declarations Act, Cap 19 of the Laws of Kenya. The Act provides the procedure for the appointment of Commissioners for Oaths. Section 5 requires that a Commissioner for Oaths, before whom an oath is taken, state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. 9.The Court is cognizant of the fact that an affidavit is a statement of facts, sworn or affirmed by a natural person, who has personal knowledge of the matters deposed therein. While a company acts through its agents, it cannot, as a juristic person, "swear" an oath. Thus, any affidavit filed on behalf of a company, must be sworn by an authorized natural person, including but not limited to, a director, secretary, or any other authorized officer, who explicitly states their authority to depose on behalf of the company and identifies the source of their knowledge before a Commissioner for Oaths. 10.In the persuasive decision of the Ugandan High Court in Black Markets Records Ltd v Malinga Sulaiman & 3 Others, Misc. Appln No. 2788 of 2023, the, the court held as follows:“Since the applicant is a record label company, the persons authorized to swear an affidavit on its behalf would be its director, secretary or principal officer or any other senior officer authorized in writing to represent the company.” 11.Much as the company is a juristic person, and therefore a person recognized in law, its operations are run by natural persons in the form of shareholders and directors. This is because a company is not tangible. It falls on its appointed officials to conduct its running operations for its existence to subsist. In that same vein, an affidavit cannot be sworn by a juristic person in its own name on account of the inability explained. In fact, Section 16 of the Act requires the person swearing to give an affirmation as follows:“I A, B, do solemnly, sincerely and declare and affirm….” 12.In the present application, the affidavit in support was indicated to be sworn by the applicant, namely Heldo Foodstuff Limited. There was no mention of any of the applicant’s officers as the person authorized to make and or swear the affidavit on its behalf. The question that arises thus is who appeared before the Commissioner for Oaths and, indeed, what was he witnessing? The less we say about Wilson K. Kigen, the Commissioner for Oaths, who purportedly witnessed the affidavit, the better. For those reasons, the application is incurably defective. So incurable that neither the oxygen principles nor the provisions of Article 159 of the Constitution could succor or salvage the application. 13.We have said enough to conclude that the present application is incompetent, incurably defective and cannot be sustained. Consequently, the Notice of Motion dated 23rd March 2026 is devoid of merit, and it is hereby struck out. On costs, we note that the respondents had not filed any documents and are therefore not entitled to costs. DATED AND DELIVERED AT ELDORET THIS 15TH DAY OF MAY, 2026.M. GACHOKA C.Arb, FCIArb………………JUDGE OF APPEALW. KORIR……………………………JUDGE OF APPEALL. M. NDOLO……………………………JUDGE OF APPEALI certify that this is a true copy of the original.signedDEPUTY REGISTRAR