Everline Rosa v Catherine Koriko, Benja Koriko & Daniel Koriko
The bottom line
#A Kenyan land court dismissed a bid to appeal late because the lawyer, not the client, swore the supporting affidavit on contested facts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the application as drawn and filed is competent
- 2.Whether or not the Application is merited
- 3.What reliefs ought to issue
- 4.Who bears the costs of the application
Key legal issues
#Competency of the application supported by an advocate's affidavit on contested facts
The supporting affidavit sworn by counsel on contentious issues was defective and struck out, leaving the application unsupported
The court adopted the Court of Appeal's restatement that advocates should not swear affidavits in contested matters where clients are available, as such depositions risk hearsay and force counsel to become a witness. Counsel had recently come on record and had no personal knowledge of the decree, bill of costs and ruling; the respondent annexed contrary correspondence with the previous advocates.
Whether leave to appeal out of time and stay of execution were merited
Without a competent affidavit, the grounds for extension of time and the twin stay principles of substantial loss and prejudice were not demonstrated; the application failed
The affidavit was the sole vehicle for the factual grounds. Once struck out, no evidence remained to establish sufficient cause for the delay from the 9 May 2023 judgment or substantial loss and prejudice under Order 42 Rule 6, rendering the application incompetent and hollow and undeserving of the discretionary reliefs sought.
Legal principles established
#- An advocate should not swear an affidavit on contested issues where the client is available; such an affidavit is defective and liable to be struck out
Court orders
#- 1.The Notice of Motion dated 6th June 2026 is dismissed
- 2.Costs of the application awarded to the Plaintiff/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules (extension of time and stay pending intended appeal)
Relief refused
#Leave to appeal out of time against the judgment of 9 May 2023
Application unsupported by a competent affidavit; delay and reasons for it not demonstrated
Stay of execution of the judgment and all consequential orders
Twin principles of substantial loss and prejudice not addressed or demonstrated
Temporary injunction restraining ground re-establishment exercise on parcel No. Transmara/Oloiborsoito/12
Application dismissed as incompetent and unmerited
Costs
Application dismissed with costs to the Plaintiff/Respondent
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.
The general rule is that advocates, should not swear affidavits, in contested matters.
it is not the hear swearing of an affidavit by an Advocate that renders it defective, but the swearing of an affidavit on contentious issues of which he or she has not knowledge of
the application is not supported by any affidavit as required under the law, hence the issues of o the delay and reasons for the delay in support of the prayer for leave to file an appeal out of time and neither the twins issues substantial loss and prejudice which are the principles to be considered for stay of execution under Order 42 Rule 6, have not been addressed and demonstrated and the application is not only incompetent but hollow hence it is not merited and the same is hereby dismissed with costs.
Issues in the judgment
#Coram lists three Applicants but the motion names four including Felix Koriko
Application date inconsistently given as 2026 and 2023
Grounds refer to awareness of 'the judgment of 2026' though judgment was delivered 9 May 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Everline Rosa v Catherine Koriko, Benja Koriko & Daniel Koriko", Case Analysis (2026). ELC Case No. E004 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5985/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.