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ELCStruck OutNot stated in the judgment as provided

Mwandi v Songe (Environment and Planning Miscellaneous Application E005 of 2024) [2026] KEELC 2399 (KLR)

Environment and Land Court
30 April 2026
1,343 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A landowner's entire lawsuit was thrown out because his own lawyer improperly swore the verifying affidavit — a fatal paperwork error courts won't forgive.

What this practically means

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Executive summary

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The Plaintiff sued seeking a declaration that the Defendant's blocking of an access road was unconstitutional and injurious to the public, an order to unblock the waterway flowing from Kinyae dam to Kivenzi/Boniface dam, oversight of compliance by the Area Chief of Thavu Sub-County, general, aggravated and exemplary damages, costs and interest. The Defendant filed a preliminary objection contending that the suit was fatally defective because the verifying affidavit was drawn and commissioned by the Plaintiff's own advocates, Dola, Magani & Co. Advocates, contrary to Section 4(1) of the Oaths and Statutory Declarations Act, and that the plaint was therefore a nullity liable to be struck out. The Plaintiff filed no submissions. The court found that Dola Indidis of the same firm drew the pleadings and commissioned the verifying affidavit, giving him an interest in the proceedings in breach of the proviso to Section 4(1). Relying on Caltex Oil (Kenya) Limited and Lesrima Simeon Saimanga, and reaffirming its own earlier ruling, the court held the violation was substantive and not curable under Article 159. The verifying affidavit was struck out as incompetent; without a valid verifying affidavit the plaint had no foundation, and the court struck out the plaint dated 18th December, 2024 with costs to the Defendant.

Questions the Court framed

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

  1. 1.Whether the Plaint and the verifying affidavit thereto are incurably incompetent for being in violation of Section 4(1) of the Oaths and Statutory Declarations Act
  2. 2.Who should bear the costs

Key legal issues

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01

Whether a verifying affidavit drawn and commissioned by the plaintiff's own advocate is competent

Holding

It is incompetent; the advocate's commissioning offends the proviso to Section 4(1) of the Oaths and Statutory Declarations Act, rendering the affidavit a nullity and, by consequence, the plaint unsupported

Reasoning

The court found the verifying affidavit sworn by Boniface Mwandi was drawn by Dola, Magani & Co. Advocates and commissioned by Dola Indidis of the same firm, giving the commissioner an interest in the proceedings. Relying on Caltex Oil and Lesrima Simeon Saimanga, the court held the breach is substantive, not a curable irregularity, and cannot be salvaged under Article 159. The plaint, unaccompanied by a valid verifying affidavit as required by Order 4 Rule 1(2), had to be struck out under Order 4 Rule 1(6).

Legal principles established

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  • A commissioner for oaths shall not exercise those powers in a proceeding in which he is the advocate for any of the parties or in which he is interested
  • An affidavit commissioned in contravention of Section 4(1) of the Oaths and Statutory Declarations Act is not an affidavit known in law and cannot be cured under Article 159

Court orders

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  1. 1.The verifying affidavit sworn by the Plaintiff on 18th December, 2024 is found incompetent and is struck out
  2. 2.The Plaint dated 18th December, 2024 is struck out with costs to the Defendant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction under the Civil Procedure Act (Cap 21) and the Civil Procedure Rules, 2010

Relief refused

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Declaration that blocking the access road breaches constitutional rights; compulsory order to unblock the waterway; general, aggravated and exemplary damages; oversight by the Area Chief

The entire suit was struck out for want of a valid verifying affidavit, so no substantive relief was considered

p. 3

Costs

Costs of the suit to the Defendant (Plaint struck out 'with costs to the Defendant')

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.

since the afidavits are commissioned in contravention of Section 4 of Cap 15 they do not amount to afidavits known in law
p. 3Effect of affidavits commissioned by an interested advocate
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.
p. 3Non-curable statutory violation; Article 159 no cure
In accordance with Order 4 Rule 1(6) of the Civil Procedure Rules, I hereby proceed to strike out the Plaint dated 18th December, 2024 with costs to the Defendant. It is so ordered.
p. 3Final orders

Issues in the judgment

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minor

The judgment is headed as a judgment on a plaint filed 18 December 2024 but the disposition reads as a ruling on a preliminary objection dated 14 August 2025; the signature block also labels it 'RULING' and gives the delivery date as 30 April 2026, while the body calls it a ruling written at a time when plaintiff's submissions were outstanding

minor

Plaint is dated 18th December, 2024 but the verifying affidavit is described as dated 18th February, 2025 in the preliminary objection and sworn on 18th December, 2024 in the analysis

minor

Submissions' date discrepancy: Defendant's submissions dated 3rd November 2025, directions of 15th October 2025, judgment delivered 30 April 2026

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, "Mwandi v Songe (Environment and Planning Miscellaneous Application E005 of 2024) [2026] KEELC 2399 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2399/eng@2026-04-30

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