Mwandi v Songe (Environment and Planning Miscellaneous Application E005 of 2024) [2026] KEELC 2399 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Who should bear the costs
Key legal issues
#Whether a verifying affidavit drawn and commissioned by the plaintiff's own advocate is competent
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
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
#- 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
#- 1.The verifying affidavit sworn by the Plaintiff on 18th December, 2024 is found incompetent and is struck out
- 2.The Plaint dated 18th December, 2024 is struck out with costs to the Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction under the Civil Procedure Act (Cap 21) and the Civil Procedure Rules, 2010
Relief refused
#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
Costs
Costs of the suit to the Defendant (Plaint struck out 'with costs to the Defendant')
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.
since the afidavits are commissioned in contravention of Section 4 of Cap 15 they do not amount to afidavits known in law
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.
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.
Issues in the judgment
#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
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
Submissions' date discrepancy: Defendant's submissions dated 3rd November 2025, directions of 15th October 2025, judgment delivered 30 April 2026
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.