Osoro v Ngibuini (Enviromental and Land Originating Summons E054 of 2025) [2026] KEELC 2754 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to pause a lower-court land case, confirming magistrates can hear adverse possession claims and shared addresses don't invalidate affidavits.
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 Plaintiff's supporting affidavit is fatally defective for offending Section 4(1) of the Oaths and Statutory Declarations Act (the Preliminary Objection)
- 2.Whether Milimani MCELC No. E091 of 2022 should be stayed pending the outcome of this suit
Key legal issues
#Whether the supporting affidavit was fatally defective under Section 4(1) of the Oaths and Statutory Declarations Act
No - the mere sharing of a postal address between the Commissioner for Oaths and the Plaintiff's advocates does not offend the proviso to Section 4(1); no evidence showed the Commissioner worked for, or was clerk to, the advocate on record
Section 4(1) prohibits a commissioner for oaths from commissioning affidavits in a matter in which he is the advocate for a party, concerned in the matter, clerk to such advocate, or interested. The court found no evidence that Ms. Jane Miyogo worked for or was a partner in Masara & Company Advocates. Sharing an address alone does not establish the disqualifying relationship, and the defendant showed no falsehood in the averments or prejudice.
Whether the subordinate court proceedings in MCELC No. E091 of 2022 should be stayed pending determination of this suit
No - stay was refused; the plaintiff, having filed a defence and counterclaim and participated in pretrial directions in the earlier subordinate court suit, could not then seek a stay on jurisdictional grounds
Stay of proceedings is a grave and exceptional remedy. The subordinate court suit was filed in 2022, three years before the instant suit, and the plaintiff had submitted to its jurisdiction by filing a defence and counterclaim and undertaking pretrial directions. The court found the plaintiff not candid and observed he should have sought transfer and consolidation of the lower court matter rather than a stay.
Legal principles established
#- Sharing a postal address alone does not render an affidavit fatally defective under the proviso to Section 4(1) of the Oaths and Statutory Declarations Act absent evidence that the Commissioner for Oaths is the advocate on record or concerned in the matter
- Stay of proceedings is a grave judicial action to be exercised sparingly and only in exceptional circumstances, since it interferes with the right of a litigant to conduct his litigation
Court orders
#- 1.The Preliminary Objection dated 13th December 2025 is disallowed
- 2.The Notice of Motion application dated 28th October 2025 seeking stay of proceedings in MCELC No. E091 of 2022 is dismissed
- 3.Costs will be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(6) of the Constitution (supervisory jurisdiction over Magistrates' Courts) invoked; inherent jurisdiction of the Environment and Land Court over adverse possession claims
Relief refused
#Stay of proceedings in MCELC No. E091 of 2022
Stay is a drastic, exceptional remedy; the plaintiff submitted to the subordinate court's jurisdiction by filing a defence and counterclaim and participating in pretrial directions; the proper course was transfer and consolidation, not stay; the subordinate court suit was commenced much earlier
Costs
Costs will 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.
In the foregoing, I decline to find the supporting affidavit fatally defective. I have disallowed the Preliminary Objection.
In the circumstances, I find the instant Notice of Motion application including the Notice of Preliminary Objection unmerited and will disallow them.
Costs will be in the cause.
I opine that the Plaintiff should have sought to have the lower court matter transferred to this Court and consolidated with this suit, instead of seeking to stay it.
Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation.
Issues in the judgment
#The judgment is undated at its commencement and bears internal typographical errors (e.g. 'Plaintifi', 'ofiending', 'afiidavit'), and the ruling is styled as a judgment but disposes of an interlocutory Notice of Motion
Defendant alternately referred to as male ('he') and the supporting affidavit deponent/commissioner referred to as 'her advocate on record' and 'Ms. Jane Miyogo', creating ambiguity
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osoro v Ngibuini (Enviromental and Land Originating Summons E054 of 2025) [2026] KEELC 2754 (KLR)", Case Analysis (2026). ELCLOS No. E054 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2754/eng@2026-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.