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ELCDismissedELC Case No. E004 of 2021

Everline Rosa v Catherine Koriko, Benja Koriko & Daniel Koriko

Environment and Land Court of Kenya
30 September 2026
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Defendants/Applicants moved the Environment and Land Court at Kilgoris by Notice of Motion dated 6 June 2026 seeking leave to appeal out of time against the judgment delivered on 9 May 2023, a stay of execution of that judgment and consequential orders, and a temporary injunction restraining a ground re-establishment exercise on parcel No. Transmara/Oloiborsoito/12. They attributed the delay to late awareness of the judgment and asserted the appeal raised arguable points. The Plaintiff/Respondent opposed, contending the Applicants were served with the decree and bill of costs, were indolent, and that the supporting affidavit was fatally defective because it was sworn entirely by counsel, Ms. Gakii Kithinji, on contentious matters, and its jurat indicated Kilgoris while the commissioner's stamp showed a Nairobi address, contrary to Section 5 of the Oaths and Statutory Declarations Act. The court framed four issues: competency, merit, reliefs and costs. Applying Court of Appeal authority, it held that while the mere swearing of an affidavit by an advocate is not fatal, swearing on contentious facts outside counsel's knowledge renders it defective and liable to be struck out. Counsel had recently come on record and lacked knowledge of the decree and bill of costs, and the respondent annexed contrary correspondence with the previous advocates. The affidavit was struck out, leaving the application unsupported. Consequently, the grounds for extension of time and the twin stay principles of substantial loss and prejudice were undemonstrated. The application, being incompetent and hollow, was dismissed with costs to the Plaintiff/Respondent.

Questions the Court framed

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

  1. 1.Whether or not the application as drawn and filed is competent
  2. 2.Whether or not the Application is merited
  3. 3.What reliefs ought to issue
  4. 4.Who bears the costs of the application

Key legal issues

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01

Competency of the application supported by an advocate's affidavit on contested facts

Holding

The supporting affidavit sworn by counsel on contentious issues was defective and struck out, leaving the application unsupported

Reasoning

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.

p. 6
02

Whether leave to appeal out of time and stay of execution were merited

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 6th June 2026 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

The bench

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

majority

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

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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

p. 6

Temporary injunction restraining ground re-establishment exercise on parcel No. Transmara/Oloiborsoito/12

Application dismissed as incompetent and unmerited

p. 6

Costs

Application dismissed with costs to the Plaintiff/Respondent

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.

The general rule is that advocates, should not swear affidavits, in contested matters.
p. 5Advocates swearing 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
p. 6Test for defectiveness of an advocate's affidavit
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.
Final orders - dismissal of the application

Issues in the judgment

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minor

Coram lists three Applicants but the motion names four including Felix Koriko

material

Application date inconsistently given as 2026 and 2023

material

Grounds refer to awareness of 'the judgment of 2026' though judgment was delivered 9 May 2023

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, "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.