Moretti & 6 others v Tirito & 3 others (Environment and Land Case E041 of 2024) [2026] KEELC 1113 (KLR)
The bottom line
#A Kenyan court struck out a defective foreign affidavit but still protected villa buyers whose leases sit on a cancelled title.
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 affidavit of Pasquale Tirito dated 14/11/2025, allegedly sworn abroad and improperly commissioned/notarized, ought to be struck out, and if so whether the application dated 7/11/2025 should be allowed as unopposed
- 2.Whether to admit the Forensic Document Examiner's report dated 31/10/2025 in support of the application dated 7/11/2025
- 3.Whether to order stay of proceedings pending cross-examination of the 1st defendant, Mr Kangethe (the commissioner for oaths) and Mr Sumba over the impugned affidavits
- 4.Whether the 1st defendant should be struck out of the suit for want of pleaded claims and prayers against him
- 5.Whether the interim orders granted in the suit (and reinstated on 27th February 2025) should be vacated, discharged or set aside
- 6.Which of the prayers in the application dated 8/5/2024 (injunction and ancillary orders pending hearing) should be granted, including in light of the overlapping suit Malindi ELC No. E053 of 2022
Key legal issues
#Validity of a foreign/notarized affidavit sworn in response to an interlocutory motion
The affidavit of Pasquale Tirito dated 14/11/2025 was defective and was struck out, following the Pastificio case on section 88 of the Evidence Act; however, the motion dated 7/11/2025 was not allowed as unopposed merely because the responding affidavit was struck out
The impugned affidavit bore no commissioner's stamp or marks of a commissioner or notary on the jurat, the notarization documents were unsigned or in untranslated Italian, and there was no proof it was taken before a Notary Public abroad. Yet the court declined to treat the motion as unopposed, citing directions against further interlocutory delay and the rule that a claimant must still prove its claim even absent a defence.
Whether the Forensic Document Examiner's report dated 31/10/2025 should be admitted
Admitted as part of the record and in support of the application dated 7/11/2025, but with reservations about the futility of challenging signatures whose professed authors are present and owning the documents
The court noted that expert reports on document authenticity deserve great care where the purported authors are available and continue participating in proceedings without querying the documents. Compelling deponents to confess through cross-examination that signatures filed by their own counsel are not theirs would draw the court into the arena of conflict, while their acquiescence may haunt them later.
Whether cross-examination was warranted on the venue of commissioning of the affidavits dated 10th April 2025, 17th February 2025 and 28th February 2025
No cross-examination or stay of proceedings was warranted; the stamp bearing 'NAIROBI' did not establish where the affidavits were sworn
On the balance of probabilities, applying section 109 of the Evidence Act, it is more probable that a commissioner for oaths carries one commissioning stamp wherever he goes. The face of the affidavits, Mr Sumba's affidavit and the clients' own replying affidavits corroborated that commissioning occurred in Malindi, where Mr Kangethe has legal chambers, and this was not controverted.
Whether the 1st defendant should be struck out of the suit
The 1st defendant was retained in the suit because the plaint pleads specific prayers against him and no prejudice was shown
The court, per the Clifford George Rook case, may strike out a claim where no facts or prayers are pleaded against a defendant, but here the plaintiffs joined the 1st defendant from inception, pleaded and prayed relief against him (including quiet possession, accounting for monies, and cessation of unilateral property management). Striking him out would force forfeiture of claims and embarrass the hearing; he would participate through his company in any event.
Injunction and ancillary interim reliefs in the application dated 8/5/2024 under Giella v Cassman Brown
A prima facie case and risk of irreparable loss were established because the plaintiffs' leases were registered against a closed title, leaving the villas apparently unregistered; selected prayers granted
The green card for plot Chembe/Kibabamshe/1114 was closed and a new plot 2091 issued to the 2nd defendant, leaving the plaintiffs' leases hanging in the air with no encumbrance protecting them. The defendants' own former advocate's letter of 6/12/2023 admitted the leases were null and void, and their pleadings in Malindi ELC E079 of 2014 acknowledged the subdivisions were cancelled. Prayers 12, 13, 14, 15 and 17 were granted; service-charge prayers refused as res judicata to the pending E053 of 2022 suit; deposit prayers refused.
Legal principles established
#- An affidavit taken abroad is admissible in Kenya if it would be admissible in England under section 88 of the Evidence Act, but an affidavit taken outside the Commonwealth must be proved to have been taken before a Notary Public; a defective, uncommissioned affidavit cannot be used in court proceedings and may be struck out
- Even where no defence or response is filed, the claimant must still prove its claim to the required standard
- A defendant should not be struck out where the plaint pleads and seeks specific relief against him from the inception of the suit, absent demonstrated prejudice
- Reliefs falling within the subject matter of a pending suit between the same parties cannot be sought and granted in a later suit; it is for the plaintiff to move those prayers to the proper forum
- Co-lessees in an estate are bound by the same restrictive user covenants they prescribed; the lessor holding unsold villas is bound by covenants restricting use to a single private residence
Court orders
#- 1.The prayers in the application dated 7/11/2025 are granted only to the extent that the Forensic Document Examiner's Report dated 31st October 2025 by Mr. Emmanuel Kenga is deemed properly filed and admitted as evidence in support of the application dated 7/11/2025 only
- 2.The affidavit of Pasquale Tirito dated 14th November 2025 is struck out due to its defects
- 3.Prayers nos 1, 2 and 3 in the application dated 10/4/2025 are declined
- 4.Prayers number 12, 13, 14, 15 and 17 in the application dated 8/5/2024 are granted as prayed, save that in complying with order no 17 the 4th defendant shall be deemed to have complied if he files and serves clear certified copies of the green card, deeds and instruments registered over title to parcel number 2091, if any
- 5.The costs of the applications dated 7/11/2025, 10/4/2025 and 8/5/2024 shall be in the cause
- 6.The suit shall be readied for hearing and accorded a hearing date on a priority basis
- 7.The matter to be mentioned on 23/3/2026 alongside Malindi ELCLC E079 of 2024 and Malindi ELCLC E053 of 2022 involving the same parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land and title disputes (interlocutory motions in a pending suit)
Relief refused
#Stay of proceedings pending cross-examination of Pasquale Tirito and Mr George Joseph Kangethe over venue of commissioning of affidavits
It is more probable than not that a commissioner for oaths carries one commissioning stamp wherever he goes; the address on the stamp only identifies his contact address and does not establish where the affidavit was sworn; the court accepts Mr Kangethe's explanation
Stay of proceedings pending cross-examination of Mr Nicholas Sumba and striking out/expunging of his affidavit dated 29/10/2025
The grounds and supporting affidavit dwelt only on his locus standi and identified no specific issue or content for cross-examination; the appropriate cure, if he has no locus, is striking out on that ground
Prayers 1, 2 and 3 of the 1st and 2nd defendants' application dated 10/4/2025 (striking out the 1st defendant from the suit and vacating interim orders)
The plaint pleads specific prayers against the 1st defendant who was joined from inception; striking him out would force the plaintiffs to forfeit their claims; the interim orders cannot be vacated in isolation because the final determination of the 8/5/2024 application governs the interlocutory rights
Prayers 7, 8, 9 and 10 of the application dated 8/5/2024 (service charge-related reliefs: ETR receipts, forensic audit, suspension/appointment of property management company)
These reliefs are the subject matter of the pending suit Malindi ELC No. E053 of 2022 concerning service charge over the same properties; the court cannot grant prayers duplicating a claim in a pending suit
Prayer 16 of the application dated 8/5/2024 (deposit of title documents over all subdivisions of LR Chembe/Kibabamshe/387 in court)
The court was not shown that the deposit would serve any useful purpose; the plaintiffs remain in occupation and a refund of purchase price is sought in the plaint
Prayer 11 of the application dated 8/5/2024 (deposit of Kshs 123,000,000 in a joint interest-earning account)
The court agreed the deposit would subject the 1st and 2nd defendants to double jeopardy while the plaintiffs remain in occupation of the suit premises
Costs
The costs of the applications dated 7/11/2025, 10/4/2025 and 8/5/2024 shall be in the cause.
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.
An afidavit must be properly commissioned or notarized if it is to be used in solemn proceedings of court.
The upshot of the foregoing is that the application dated 8th May, 2024 has partial merit and I therefore make the following orders:
The afidavit of Pasquale Tirito dated 14th November 2025 is hereby struck out due to its defects;
The costs of the applications dated 7/11/2025, 10/4/2025 and 8/5/2024 shall be in the cause.
This suit shall be readied for hearing and shall be accorded a hearing date on a priority basis;
regardless of the failure to file any defence in a suit, the claimant must nevertheless prove his claim to the required standard.
I am persuaded that the plaintifis herein risk irreparable loss. This is the kind of case that should go to full hearing so that the plaintifis may know the ultimate fate of their leases sold to them by the 1st and 2nd defendants.
Issues in the judgment
#The suit's own case number is not stated anywhere in the judgment; only related suit numbers (Malindi ELCLC E079 of 2024 and Malindi ELCLC E053 of 2022) appear.
The judgment internally gives inconsistent dates for the directions and the application: the directions are described as made on 1/12/25, while the court's earlier ruling is referred to as 'its earlier ruling of 6/12/2025', and the motion dated 7/11/2025 is at one point called 'the motion dated 7/11/2026'.
The plaintiffs' motion dated 8/5/2024 is described both as seeking injunctive orders pending hearing and as containing prayers for deposit of Kshs 123,000,000 and title documents; the interim orders referenced are inconsistently dated (granted 19th June 2024/2025 and reinstated 27th February 2025).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moretti & 6 others v Tirito & 3 others (Environment and Land Case E041 of 2024) [2026] KEELC 1113 (KLR)", Case Analysis (2026). Not stated in judgment (Malindi ELC suit; related suits Malindi ELCLC E079 of 2024 and Malindi ELCLC E053 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1113/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.