[2025] KEELC 440 (KLR)
The court declined to determine the application dated 9th December 2024 because only a partial, illegible copy was available on record, making it impossible to appreciate the contents or the basis of the application. Furthermore, the court found that the further affidavit by the 2nd defendant's director referenced a...
Source-derived case information.
- Citation
- [2025] KEELC 440 (KLR)
- Parties
- Plaintiff: Juma Charo Mwangazi & 3 others; Defendant: Jaferalli Lalji Mawani; Defendant: Msambweni Development Co. Ltd; Plaintiff: Msambweni Development Co. Ltd; Defendant: Said Juma Fundi & 81 others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Enviromental and Land Originating Summons 463 of 2010
- Procedural Posture
- Originating Summons / Interlocutory Ruling on Application and Affidavits
- Outcome
- Interlocutory orders issued; no substantive determination on the application pending compliance with court directions.
- Judges
- SM Kibunja
- Legal Topics
- Land Adjudication, Affidavit Procedure, Court Record Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Charo Mwangazi & 3 others
Plaintiff
Jaferalli Lalji Mawani
Defendant
Msambweni Development Co. Ltd
Defendant
Msambweni Development Co. Ltd
Plaintiff
Said Juma Fundi & 81 others
Defendant
Procedural Posture
Originating Summons / Interlocutory Ruling on Application and Affidavits
Legal Issues
- 1 Whether the court can determine the application dated 9th December 2024 in the absence of a complete and legible copy of the notice of motion.
- 2 Whether the further affidavit referencing a future-dated letter is valid without clarification of the correct date.
- 3 Whether the consent filed can be determined without clarification of the affidavit and proper documentation.
Ratio Decidendi
The court declined to determine the application dated 9th December 2024 because only a partial, illegible copy was available on record, making it impossible to appreciate the contents or the basis of the application. Furthermore, the court found that the further affidavit by the 2nd defendant's director referenced a letter dated in the future, which required clarification before the court could rely on it. The court held that it is essential for parties to provide complete, accurate, and legible documents for the court's consideration, and any ambiguities or errors in affidavits or supporting documents must be rectified before a substantive determination can be made. Accordingly, the...
Court Disposition
Interlocutory orders issued; no substantive determination on the application pending compliance with court directions.
Orders
- The 2nd defendant/applicant to upload a properly scanned and legible copy of the notice of motion dated 9th December 2024 within two days.
- A supplementary or further affidavit clarifying the date of the letter referenced in the affidavit sworn on 28th January 2025 to be filed within two days.
Full Case Text
Judgment text and source record
28 paragraphs
Mwangazi & 4 others v Mawani & 83 others (Enviromental and Land Originating Summons 463 of 2010 & Environment & Land Case 60 of 2011 (Consolidated)) [2025] KEELC 440 (KLR) (11 February 2025) (Ruling)
Neutral citation: [2025] KEELC 440 (KLR)
Republic of Kenya
In the Environment and Land Court at Mombasa
Enviromental and Land Originating Summons 463 of 2010 & Environment & Land Case 60 of 2011 (Consolidated)
SM Kibunja, J
February 11, 2025
Between
Juma Charo Mwangazi & 3 others & 3 others & 3 others & 3 others & 3 others & 3 others
Plaintiff
and
Jaferalli Lalji Mawani
1st Defendant
Msambweni Development Co. Ltd
2nd Defendant
As consolidated with
Environment & Land Case 60 of 2011
Between
Msambweni Development Co. Ltd
Plaintiff
and
Said Juma Fundi & 81 others & 81 others & 81 others & 81 others & 81 others & 81 others
Defendant
Ruling
1. That from the outset, I wish to point out that the court is unable to appreciate or make any determinations on the application dated the 9th December 2024 as only half of its left part was scanned and uploaded in the CTS. The replying affidavit of Mzee Chula Kadzole, the 2nd plaintiff, sworn on 24th January 2025 is evidently in respect of the said application dated 9th December 2024, and without the court appreciating the contents of the said notice of motion, then it cannot pronounce itself on the depositions thereon and the consent filed.
2. The further affidavit by Colonel [RTD] Joseph Nyaga Nguru, 2nd defendant’s director and secretary, sworn on the 28th January 2025, refers to a letter from the Director Land Adjudication and Settlement dated 22nd November 2025 that was in response to their letter dated 20th January 2025. Considering 22nd November 2025 is months in the future, the court will take it that there was an error in that reference. It is only fair for the deponent to file a further affidavit clarifying the date of the letter under reference before the court renders its determination on the consent filed.
3. I have given due considerations to the oral submissions by Mr. Akanga and Mr. Kethi Ngombo, the learned counsel for the 2nd defendant and plaintiff respectively. I have also perused the record and in view of the findings in 1 and 2 above, the court directs as follows:a.That the 2nd defendant/applicant to upload a properly scanned and legible copy of the notice of motion dated 9th December 2024 in two (2) days.b.That a supplementary/further affidavit be filed clarifying the date of the letter referred to at paragraph 2 of the further affidavit sworn on 28th January 2025 in two (2) days.c.A date for the court’s ruling to be fixed.It is so ordered.
DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 11TH DAY OF FEBRUARY 2025. S. M. KIBUNJA, J.ELC MOMBASA.In The Presence Of:Plaintiffs : Mr Kethi NgomboDefendant : Mr AkangaSHITEMI – COURT ASSISTANT.S. M. KIBUNJA, J.ELC MOMBASA.