Kigumba & another v Marete & 3 others (Enviromental and Land Originating Summons E030 of 2025) [2026] KEELC 348 (KLR)
The bottom line
#A Kenyan land court ruled that unsealed affidavit annexures are a curable paperwork flaw, not a reason to dismiss a case.
What this practically means
#Executive summary
#Key legal issues
#Compliance of the annexures with Rule 9 of the Oaths and Statutory Declarations Rules
The annexures were neither serialized in the manner stipulated nor securely sealed; what was done amounted only to certification, which does not satisfy Rule 9.
The court examined the annexures to the supporting affidavit and found they bore no seal of the commissioner of oaths. Rule 9 requires all exhibits to be securely sealed under the commissioner's seal and marked with serial letters of identification. Certification only applies to secondary (photocopy) documents to confirm they are true copies of originals, and cannot substitute for the sealing and serialization Rule 9 demands. The court therefore agreed with the defendants' submissions on this issue.
Whether breach of Rule 9 is fatal and irredeemable
No - the breach is not per se fundamental; the court retains a discretion to cure it under Article 159(2)(d), following the Court of Appeal's later decision in Oginga v Moko.
Although Zaheer Jhanda treated breaches of Rule 9 as mandatory and incurable, the Court of Appeal in Oginga v Moko [2024] later held that venial formalistic failures do not automatically render annexures inadmissible; the test is substantive - prejudice, mockery of due process, or bad faith. Adopting that later, more nuanced authority, and noting the sensitivity of land disputes, the court held that the failure here could be forgiven under Article 159(2)(d) and did not warrant driving the plaintiff from the seat of justice.
Whether the annexures, affidavit paragraphs and originating summons should be struck out
No - the preliminary objection was dismissed; the affidavit complied with Order 19, the originating summons with Order 37 Rule 7, and the issues could be addressed at directions under Order 37 Rules 16, 17 and 19.
Beyond the annexure complaint, no irregularity was pointed out in the affidavit, which the court confirmed conformed with Order 19 of the Civil Procedure Rules, and the originating summons ex facie complied with Order 37 Rule 7. Even if the annexures had been struck out, the exhibiting paragraphs would remain. Striking out is drastic and would drive a litigant from the seat of justice; the objection therefore had no utilitarian value, being properly a matter for directions.
Legal principles established
#- Failure to serialize and securely seal annexures under Rule 9 of the Oaths and Statutory Declarations Rules does not automatically invalidate them; the court retains discretion to excuse the defect under Article 159(2)(d) of the Constitution, especially in land disputes.
- Certification of a photocopy as a true copy of the original is distinct from the serialization and sealing of annexures required by Rule 9.
- Striking out a pleading is a drastic and draconian jurisdiction to be exercised sparingly and with circumspection.
Court orders
#- 1.The preliminary objection dated 12th January, 2026 be and is hereby dismissed.
- 2.Each party shall bear own costs of the preliminary objection.
- Jurisdiction invoked
- Original jurisdiction over a dispute touching on ownership of and title to land; procedural framework under Article 159(2)(d) of the Constitution, the Oaths and Statutory Declarations Rules and the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kigumba & another v Marete & 3 others (Enviromental and Land Originating Summons E030 of 2025) [2026] KEELC 348 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/348/eng@2026-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.