Adolwa v Evangelical Lutheran Church in Kenya (Land Case Appeal E074 of 2024) [2025] KEELC 4133 (KLR)
The bottom line
#A Kenyan court refused to retry an already-decided rent tribunal dispute, struck out argumentative affidavit content, and ordered costs against the applicant.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether paragraphs of the Appellant's Supporting Affidavit should be struck out as scandalous, irrelevant or oppressive under Order 19 Rules 3 and 6
- 2.Whether the prayer to set aside/stay execution of the Tribunal ruling is res judicata
- 3.Whether the Appellant should be allowed to procure additional evidence from the Registrar of Societies
- 4.Whether leave should be granted to amend the Memorandum of Appeal
Key legal issues
#Striking out affidavit matter under Order 19 Rule 6
Paragraphs containing matters of law without indicating the source of knowledge were struck out
The court held affidavits must be confined to facts as required by Order 19 Rule 3. The deponent failed to indicate whether he was a lawyer or was informed by lawyers, so paragraphs that were argumentative, speculative or matters of law were sworn contrary to law and struck out under Order 19 Rule 6.
Res judicata on the stay prayer
The stay/set-aside prayer was res judicata because a similar application had already been ruled upon on 14th November 2024
The court noted the record showed the appellant had previously sought similar orders and a ruling was delivered on 14th November 2024. The prayer was therefore res judicata and unavailable, notwithstanding that the ruling impugned was dated 29th August 2024.
Admission of additional evidence on appeal
Additional evidence refused; the applicant failed to satisfy the Order 42 Rule 27 conditions and the Mohammed Abdi Mohammed guidelines
Although Section 78 of the Civil Procedure Act empowers an appellate court to receive additional evidence, the conditions in Order 42 Rule 27 and the Supreme Court's guidelines in Mohammed Abdi Mohammed must be met. The applicant sought evidence he did not possess, inviting the court to procure it; the grounds were not satisfied and evidence is admitted sparingly.
Legal principles established
#- Prayers already decided in a prior ruling are res judicata and unavailable
- Affidavits must be confined to statements of fact within the deponent's knowledge, not arguments of law
Court orders
#- 1.Paragraphs of the Supporting Affidavit containing matters of law struck out under Order 19 Rule 6
- 2.The Appellant's Notice of Motion dated 5th February 2025 dismissed
- 3.Costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal
- E016 of 2024 Kisumu
- Jurisdiction invoked
- Appellate jurisdiction under the Civil Procedure Act (Section 78) and Order 42 of the Civil Procedure Rules 2010
Relief refused
#Stay/setting aside of execution of the Tribunal ruling dated 29th August 2024
Res judicata – a similar application had been ruled on 14th November 2024
Orders for production of the Respondent's registration certificate and constitution by the Registrar of Societies
Conditions for additional evidence on appeal not met; evidence not within applicant's possession
Leave to amend the Memorandum of Appeal
Pegged on the declined additional evidence prayers
Costs
Costs to the Respondent.
Quotable passages
#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 find that the paragraphs containing matter of law are sworn contrary to law and under the provisions of Order 19 Rule 6, hereby strike them out.
The prayer for settling aside or stay of execution of the orders of the tribunal is therefore res judicata and hence unavailable.
The application therefore fails and is hereby dismissed. Costs to the Respondent. Orders accordingly.
Issues in the judgment
#Prayer (a) seeks to set aside/stay a ruling dated 29th August 2024, yet the court records a prior ruling on the same orders delivered 14th November 2024 – chronology is internally unclear
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adolwa v Evangelical Lutheran Church in Kenya (Land Case Appeal E074 of 2024) [2025] KEELC 4133 (KLR)", Case Analysis (2025). Business Premises Rent Tribunal Appeal (application dated 5th February 2025) – Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4133/eng@2025-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.