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ELCPartially AllowedELC APPEAL NO. E014 OF 2024

Musau & 2 others v Kiamba (Environment and Land Appeal E014 of 2024) [2025] KEELC 3525 (KLR)

Environment and Land Court
5 May 2025
EOE. O. Obaga
990 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an advocate's affidavit because she deponed on disputed facts her clients could have sworn to themselves.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court on a preliminary objection raised by the Respondent against a supplementary affidavit sworn by the Appellants' advocate, Cecilia K. Mwangangi, in a pending application for stay of execution arising from an appeal against a judgment of the lower court in Tawa CMC ELC No. E002 of 2023 delivered on 29th August 2024. The objection was on three grounds: that advocates are not permitted to swear affidavits in contentious matters under Rule 9 of the Advocates (Practice) Rules; that advocates may not swear affidavits on behalf of clients who are readily available; and that the impugned affidavit was sworn on contentious issues. The court framed a single issue - whether the advocate deponed to contentious matters warranting striking out of the affidavit. Applying Order 19 Rule 3 of the Civil Procedure Rules, the Advocates (Practice) Rules 1966 and Halsbury's Laws of England, the court found that paragraphs 7 to 15 of the supplementary affidavit dealt with contentious issues litigated in the lower court and alive on appeal. The court also noted an internal contradiction: the advocate justified swearing the affidavit on the ground that the 1st Appellant had died, yet her own affidavit stated she was unaware of his death. No explanation was offered why the 3rd Appellant, who swore the supporting affidavit, could not swear the supplementary one. Article 159(1)(d) of the Constitution could not cure the defect. The preliminary objection was upheld and paragraphs 7 to 15 were expunged, with costs of the objection to abide the outcome of the pending application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Appellants' advocate deponed to matters which are contentious which will cause the affidavit to be struck out

Key legal issues

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01

Whether an advocate may swear an affidavit on contentious issues in a matter in which she acts

Holding

The preliminary objection was upheld and paragraphs 7 to 15 of the advocate's supplementary affidavit were expunged.

Reasoning

The court applied Order 19 Rule 3 of the Civil Procedure Rules and the Advocates (Practice) Rules, 1966, which confine affidavits to facts within the deponent's own knowledge and prohibit an advocate from deponing on contentious matters in a case where he acts. All the impugned averments touched on contentious issues litigated in the lower court and alive in the appeal. The advocate's justification - that the 1st Appellant had died - contradicted her own affidavit in which she said she was unaware of the death, and no explanation was given why the 3rd Appellant could not swear the affidavit.

p. 3

Legal principles established

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  • Advocates may not swear affidavits on contentious matters where the client is available to depone; Article 159(d) cannot cure such a defect.

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.Paragraphs 7 to 15 of the supplementary affidavit sworn on 24th October, 2024 are expunged
  3. 3.The costs of the preliminary objection shall abide the outcome of the pending application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority

Wrote the judgment

On appeal from
Tawa Chief Magistrate's Court (Environment and Land)
Tawa CMC ELC No. E002 of 2023
Jurisdiction invoked
Appeal from the subordinate court to the Environment and Land Court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I therefore uphold the preliminary objection and proceed to expunge paragraphs 7 to 15 of the supplementary afidavit sworn on 24th October, 2024. The costs of this preliminary objection shall abide the outcome of the pending application.
p. 3Disposition
All the averments in those paragraph touch on contentious issues which were the subject of litigation in the lower court and are now alive in the appeal before this court.
p. 3Contentious affidavit material
There is no explanation given why the 3rd Appellant who swore the supporting afidavit could not swear the supplementary afidavit as well. Article 159 (d) of the Constitution cannot cure the mistake.
p. 3Article 159(d) and technicality

Issues in the judgment

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minor

The judgment misquotes Rule 9 of the Advocates (Practice) Rules; the quoted passage is garbled ('No advocates (practice) Rule, 1966 states that...')

minor

Paragraph numbering of the preliminary objection grounds describes it as dated 29th October, 2014 while the litigation history is 2023-2024, suggesting a typographical error

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, "Musau & 2 others v Kiamba (Environment and Land Appeal E014 of 2024) [2025] KEELC 3525 (KLR)", Case Analysis (2025). ELC APPEAL NO. E014 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3525/eng@2025-05-05

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