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Court of AppealDismissedNot stated in the judgment· [2024] KECA 1798 (KLR)

John Maina Nderitu v Sarah Muringi Wang’ondu

Court of Appeal of Kenya
11 December 2024
2,083 words in judgment
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The bottom line

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The Court of Appeal in Nakuru dismissed a landowner's request to pause a Kshs 4 million judgment because the supporting affidavit was defective and the appeal lacked merit.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Warsame, Mativo and Gachoka, JJ.A) on an application dated 26th June 2024 by the defendant in an ELC suit seeking stay of execution of the trial court's judgment of 23rd May 2024 pending his intended appeal. The ELC had found trespass by the applicant on Title No. Nyandarua/Ndaragwa/247, awarded the respondent Kshs. 4,000,000 in general damages, dismissed the applicant's counterclaim for Kshs. 10,666,504 in development expenses, and issued a mandatory injunction compelling him to vacate within 60 days. The application was brought under Rules 5(2)(b), 43, 44 and 47 of the Court of Appeal Rules, 2022. The respondent objected that the supporting affidavit was unsigned and uncommissioned, contrary to Section 5 of the Oaths and Statutory Declarations Act and Rule 45(1). The court held Section 5 peremptory, declared the affidavit defective and expunged it, observing that only the further affidavit of 16th October 2024 saved the application from outright incompetence. On the merits, applying the settled two-limb Rule 5(2)(b) test from Chris Munga N. Bichage, the court found the further affidavit silent on arguability and no arguable ground disclosed. Having failed the first conjunctive limb, the nugatory limb was not considered. The application was dismissed with costs to the respondent. The trial court's judgment remains undisturbed; this was an interlocutory ruling, not a decision on the appeal itself.

Key legal issues

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01

Defectiveness of an affidavit not signed or commissioned in accordance with the Oaths and Statutory Declarations Act

Holding

The supporting affidavit was defective for non-compliance with the mandatory Section 5 of Cap 15 and was expunged from the record; had the further affidavit not also been on record, the entire application would have been incompetent.

Reasoning

Section 5 of Cap 15 is couched in peremptory terms: a commissioner for oaths must state truly in the jurat where and when the affidavit was taken. The applicant's affidavit did not conform. Even after the omission was raised in the replying affidavit and oral submissions, the applicant did not respond to or cure it. The court therefore expunged the affidavit, noting that only the presence of the further affidavit of 16th October 2024 saved the application from wholesale incompetence.

02

Arguability of the intended appeal under the first limb of Rule 5(2)(b)

Holding

The applicant failed to demonstrate a single bona fide arguable ground; the further affidavit was silent on arguability and no ground in the application could be deemed arguable.

Reasoning

Rule 44(1) requires applications to be supported by an affidavit; the surviving further affidavit said nothing on arguability. Examining the grounds in support, the court found no arguable ground. Having failed the first prerequisite, the court did not consider the nugatory limb, since the two principles are conjunctive and not disjunctive. The court noted that if the appeal ultimately succeeded, the applicant could still pursue remedies available under the law.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both limbs - arguability of the appeal and the nugatory-ness of its success if stay is refused - and satisfying only one is insufficient.
  • An affidavit must be sworn before a Magistrate or Commissioner for Oaths and must state the place and date of the oath or affirmation in the jurat; failure to comply with Section 5 of the Oaths and Statutory Declarations Act renders the affidavit defective and liable to be expunged.

Court orders

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  1. 1.Expunged the applicant's affidavit in support of the application dated 26th June 2024 from the Court record
  2. 2.Dismissed the application dated 26th June 2024 with costs to the respondent
On appeal from
Environment and Land Court (ELC)
Not stated in the judgment
Jurisdiction invoked
Rules 5(2)(b), 43, 44 and 47 of the Court of Appeal Rules, 2022 (with Articles 25(c), 50 and 159 of the Constitution invoked by the applicant)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Maina Nderitu v Sarah Muringi Wang’ondu", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1798/eng@2024-12-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.