Mwandi v Songe (Environment and Land Miscellaneous Case E005 of 2025) [2025] KEELC 5145 (KLR)
The bottom line
#A Kenyan court struck out an application because the plaintiff's own lawyer commissioned its supporting affidavit, which the law forbids.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the supporting affidavit to the Notice of Motion offends the proviso to Section 4(1) of the Oaths and Statutory Declarations Act because it was commissioned by the advocate who drew the pleadings
Key legal issues
#Whether the supporting affidavit commissioned by the deponent's own advocate is incurably defective
Yes. The affidavit was drawn and commissioned by Dola Indidis, the advocate on record, contrary to the proviso to Section 4(1) of the Oaths and Statutory Declarations Act, rendering it incompetent and leaving the Notice of Motion without evidentiary support.
The court found from the pleadings that Dola Indidis of the firm Dola Magani & Co. Advocates drew the pleadings and also commissioned the supporting affidavit. The proviso to Section 4(1) bars a commissioner for oaths from exercising those powers in a matter in which he is the advocate for a party or is interested. Relying on James Francis Kariuki and Caltex Oil, the court held this is not a mere irregularity curable under Article 159, and distinguished Kaiser Investments, which concerned affidavits sworn before a different advocate in the same firm. The affidavit was struck out, leaving the Notice of Motion bare.
Legal principles established
#- An affidavit sworn before the advocate who drew the pleadings in the same matter offends the mandatory proviso to Section 4(1) of the Oaths and Statutory Declarations Act and is incompetent; such a defect is not a mere technicality curable under Article 159 of the Constitution
Court orders
#- 1.The supporting affidavit to the Notice of Motion is struck out as incompetent
- 2.The Notice of Motion dated 18th December, 2024 is struck out
- 3.Costs of the preliminary objection to the Defendant/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction; matter filed with a plaint and Notice of Motion (court file opened under miscellaneous application; suit headed for the Chief Magistrate's Court)
Relief refused
#The interim orders sought in the Plaintiff's Notice of Motion dated 18th December, 2024
The supporting affidavit was commissioned by the advocate who drew the pleadings, contrary to the proviso to Section 4(1) of the Oaths and Statutory Declarations Act, rendering the application incompetent
Costs
Costs of the preliminary objection and of striking out the Notice of Motion awarded to the Defendant/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.
Section 4(1) of the Oaths and Statutory Declarations Act is a statutory requirement. It cannot be taken as a mere technicality or a mistake of counsel which can be executed under Article 159 of the Constitution.
I therefore proceed to strike out the Notice of Motion dated 18th December, 2024 with costs to the Defendant/Respondent.
It is therefore clear that the case of Kaiser Investments Limited (Supra) cannot assist the Respondent.
Issues in the judgment
#The court file was opened under a miscellaneous application despite a plaint having been filed, and the plaint was headed for the Chief Magistrate's Court while being handled by the High Court judge; the judgment itself notes this confusion
The parties are inconsistently designated - the Defendant is referred to as both 'Respondent' and 'Applicant' in the same preliminary objection, and the Plaintiff as both 'Respondent' and 'Applicant'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Osoro v Ngibuini (Enviromental and Land Originating Summons E054 of 2025) [2026] KEELC 2754 (KLR)[2026] KEELC 2754 (KLR)12 May 2026
Cite this brief
#Cite this brief
Caselaw, "Mwandi v Songe (Environment and Land Miscellaneous Case E005 of 2025) [2025] KEELC 5145 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5145/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.