[2015] KEELC 248 (KLR)
The court found that Mr. Yatich Chepkonga, who purported to swear the verifying affidavit and supporting affidavit on behalf of the plaintiffs, was already deceased at the time of filing the suit. As a deceased person cannot swear an affidavit or bring an action, the affidavits were declared a nullity. Furthermore,...
Source-derived case information.
- Citation
- [2015] KEELC 248 (KLR)
- Parties
- Plaintiff: Yatich Chepkonga & 13 Other Members of Kamgoin Village; Defendant: Chairman, Secretary, Treasurer, Board of Trustees, Baringo Technical College
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 166 of 2015
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection and Motion to Strike Out Plaint
- Outcome
- suit struck out as a nullity with costs to the defendant
- Judges
- A Ombwayo
- Legal Topics
- Capacity to Sue, Affidavit Validity, Striking Out Pleadings, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yatich Chepkonga & 13 Other Members of Kamgoin Village
Plaintiff
Chairman, Secretary, Treasurer, Board of Trustees, Baringo Technical College
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection and Motion to Strike Out Plaint
Legal Issues
- 1 Whether a suit can be validly instituted and supported by affidavits sworn by a deceased person.
- 2 Whether the plaintiffs had capacity to bring the suit given that some were deceased at the time of filing.
- 3 Whether the plaint and supporting affidavits are a nullity and should be struck out.
Ratio Decidendi
The court found that Mr. Yatich Chepkonga, who purported to swear the verifying affidavit and supporting affidavit on behalf of the plaintiffs, was already deceased at the time of filing the suit. As a deceased person cannot swear an affidavit or bring an action, the affidavits were declared a nullity. Furthermore, most of the plaintiffs were also found to be deceased, rendering the suit incompetent. The court held that the entire suit was a nullity bordering on fraud, as it was supported by affidavits of a deceased person and purportedly brought on behalf of deceased plaintiffs. Consequently, the suit was struck out with costs to the defendant.
Court Disposition
suit struck out as a nullity with costs to the defendant
Orders
- The verifying affidavit to the plaint is declared a nullity.
- The suit is struck out with costs to the defendant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
CIVIL SUIT NO. 166 OF 2015
YATICH CHEPKONGA & 13 OTHER MEMBERS OF
KAMGOIN VILLAGE........................................PLAINTIFFS/APPLICANTS
VERSUS
THE CHAIRMAN, SECRETARY, TREASURER, BOARD OF TRUSTEES,
BARINGO TECHINICAL COLLEGE...........DEFENDANT/RESPONDENT
COURT RULING
The plaintiffs have filed this suit claiming that they are male adults of sound mind and residing at Kamgoin village, Kapsoo Kapropita Location, Baringo County in the Republic of Kenya. They claim to be owners of various parcels of land known as Baringo Kapropita/107, 223, 109, 170, 229, 111, 110, 109, 167, 168, 175, 176, 177, 221 and 222. They seek orders that they are the rightful and registered owners of all the parcels of land named in the suit. The suit herein is filed by 14 members of the Kamgoin Location who gave Mr. Yatich Chepkonga the authority to plead on their behalf. On the basis of this authority, the said Yatich Chepkonga swore the verifying affidavit to the Plaint and the Supporting affidavit deponed on 29. 6.2015 in respect of the Notice of Motion dated 15. 6.2015.
On 20. 6.2015, Mrs. Chebii & Company Advocates filed a Notice of Motion dated 30. 6.2015 praying that the plaint to be struck out for being incompetent and abuse of court process, and that some of the plaintiffs are dead and that precisely,Mr. Yatich Chepkonga the deponent of the Verifying affidavit died before the filing of the suit.
When the matter came for hearing on the 30. 6.2015, this court ordered that the plaintiffs avail themselves for verification on 3. 7.2015. On the 3. 7.2015, I called out the file and directed that the plaintiffs identify themselves and to the courts surprise most of the plaintiffs were dead including Mr Yatich Chepkonga.
I have ascertained that Mr. Yatich Chepkonga died before the filing of this suit and therefore could not purport to bring this action either on his behalf or with the authority of the other plaintiffs. The Verifying affidavit to the plaint and the supporting affidavit to the Notice of Motion dated 15. 6.2015 are a nullity as they are sworn by a deceased person. The upshot of the above is that the whole suit is a nullity bordering on fraud as a deceased person cannot swear affidavit.
The Verifying affidavit to the plaint is hereby declared a nullity and the suit herein is struck out with costs to the defendant.
DATED AND DELIVERED AT ELDORETTHIS 3RD DAY OF JULY, 2015.
ANTONY OMBWAYO
JUDGE