[2022] KEELC 1707 (KLR)
The court found that the petitioners' supporting affidavit was unsigned, undated, and not commissioned, rendering it fatally defective and devoid of legal value. Since the petitioners relied on this affidavit and its annexures as the bedrock of their case, and the matter was to be determined solely on affidavit...
Source-derived case information.
- Citation
- [2022] KEELC 1707 (KLR)
- Parties
- Applicant: Silas Jackson Njeru; Applicant: Florence Gatavi Njeru; Respondent: Nairobi City County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? E009 of 2020
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition struck out with costs to the respondent
- Judges
- AW Mwangi
- Legal Topics
- Right to Property, Compulsory Acquisition, Procedural Defects, Affidavit Requirements
- 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
Silas Jackson Njeru
Applicant
Florence Gatavi Njeru
Applicant
Nairobi City County
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioners' supporting affidavit, which was unsigned, undated, and not commissioned, could be relied upon as evidence in support of the petition.
- 2 Whether the absence of a valid supporting affidavit and reliance on documents annexed to it rendered the petition fatally defective.
- 3 Whether the petition could be sustained in the absence of admissible affidavit evidence.
Ratio Decidendi
The court found that the petitioners' supporting affidavit was unsigned, undated, and not commissioned, rendering it fatally defective and devoid of legal value. Since the petitioners relied on this affidavit and its annexures as the bedrock of their case, and the matter was to be determined solely on affidavit evidence (with no oral evidence permitted), the absence of a valid supporting affidavit meant there was no admissible evidence to support the petition. The supplementary affidavit could not cure this defect as it was only in response to the respondent's replying affidavit. Consequently, the petition was struck out for want of admissible evidence.
Court Disposition
petition struck out with costs to the respondent
Orders
- The petition is hereby struck out with costs to the respondent.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI - MILIMANI
ELC PETITION NO. E009/2020
IN THE MATTER OF ENFORCEMENT OF RIGHTS AND FUNDAMENTALFREEDOMS
UNDER CHAPTER FOUR ARTICLES 22 AND 23 (1) AND (3) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL
FREEDOMS UNDER ARTICLE 40, 43 AND 47 OF THE CONSTITUTION
AND
IN THE MATTER OF THE LAND ACQUISITION ACT
AND
IN THE MATTER OF THE LAND ACT
AND
IN THE MATTER OF COMPULSORY ACQUISITION OF PLOT
NOS. C61 & C66, KARIOBANGI SOUTH/KCC VILLAGE
BETWEEN
SILAS JACKSON NJERU.................................................................... 1ST PETITIONER
FLORENCE GATAVI NJERU.............................................................2ND PETITIONER
AND
NAIROBI CITY COUNTY.........................................................................RESPONDENT
JUDGEMENT
Background
1. The Petition in this matter was filed on 1st September 2020 through the Judiciary e-filing portal. The Petition was filed alongside a “supporting affidavit” and annexures. The Respondent, Nairobi City County responded to the petition by way of a replying affidavit sworn by one Eric Odhiambo Obwao on 18th January 2021. With leave of the court, the petitioners filed a supplementary affidavit sworn by Silas Jackson Njeru on 20th April 2021.
2. I have keenly perused the court record in regard to the directions on the hearing of this matter. On 14th October 2021, both sides appeared before my brother Judge Angote and agreed to dispose of the matter by way of written submissions. By the time they appeared before me on 24th November 2021, the petitioners had already filed their submissions. The Advocate for the Respondent on that day requested for one more day to file his submissions. His request was allowed and a judgement date given.
Defective Supporting Affidavit
3. It is in the cause of writing this judgement that the court noted that the “supporting affidavit” filed alongside the petition has not been signed by the person who is said to be the deponent neither was it commissioned before a Commissioner for Oaths or any other authorized person. It is also not dated. The court then has to contend with the question of the implication of the defective supporting affidavit on the Petitioners’ case even before going into the merits of the case.
Determination
4. In the case of Gideon Sitelu Konchellah Vs Julius Lekakeny Ole Sunkuli & 2 others (2018) eKLR, the Supreme Court was faced with a similar scenario. In the course of preparing a ruling the court realized that the “replying affidavit” filed in the case had not been signed, dated or commissioned. The court held that the said affidavit was fatally defective for contravening all the legal requirements for the making of an affidavit. The court was categorical that such an affidavit had no legal value in the case before the court. The court concluded that the matter before it would be considered as if there was no replying affidavit.
5. Similarly, in the petition before me, the supporting affidavit is not signed by the person who is said to be the deponent nor is it dated, neither is it commissioned. Consequently, and guided by the above Supreme Court decision, I find that the so called “supporting affidavit” has no legal value in this matter. It does not qualify to be an affidavit.
6. This court notes that it is not mandatory that a constitutional petition be supported by an affidavit. Rule 11(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, is not coached in mandatory terms. It states that, “the petition filed under these rules may be supported by an affidavit.” However, under sub rule (2), where a party wishes to rely on any document, the document shall be annexed to the supporting affidavit or the petition, where there is no supporting affidavit.
7. In the instant petition, the Petitioners are relying on a total of 13 documents all of which were annexed to the “supporting affidavit”.
The “supporting affidavit” was an integral part of the petitioners’ petition. Actually it was the bedrock of the petition. Unfortunately, as I have already pointed out in paragraph 2 above, that the parties in this matter, on 14th October 2021, agreed to dispose of this petition by way of written submissions. This meant the Petitioners would not get an opportunity to adduce oral evidence in support of their petition. The petition would be determined on the basis of the affidavit evidence. The consequence therefore of the court’s finding that the “supporting affidavit”is fatally defective, by implication means that the Petitioners’ petition is not supported by any material evidence. The supplementary affidavit they had filed was merely in response to allegations by the Respondent in its replying affidavit.
Consequently, this court has no alternative but to strike out the petition at this point. The Petition is hereby struck out with costs to the Respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF FEBRUARY 2022.
M.D. MWANGI
JUDGE
In the Virtual Presence of:-
Mr. Mwalimu for the Petitioners
N/A for the Respondent
Court Assistant: Hilda
M.D. MWANGI
JUDGE