Peris Jelimo Kemei v Abraham Kipkosgei Chelanga & The Land Registrar Uasin Gishu County
The bottom line
#The Environment and Land Court dismissed a landowner's bid to revive her appeal because her supporting affidavit was unsigned and uncommissioned, making the application legally worthless.
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 Supporting Affidavit is competent and, if not, whether the defect should be regularised
- 2.Whether the Applicant has demonstrated sufficient cause for the reinstatement of the Appeal
- 3.Whether the Applicant has satisfied the threshold for the grant of the orders sought
- 4.Who bears the costs of the application?
Key legal issues
#Competency of the supporting affidavit
The affidavit was neither signed nor commissioned and was struck out as incurably defective
Sections 4 and 5 of the Oaths and Statutory Declarations Act and Order 19 Rule 3 require an affidavit to be signed by the deponent and attested by a Commissioner for Oaths. Relying on Geoffrey Githinji Mwangi and David Wamatsi Omusotsi, the court held the defect breached statutory requirements and was not a curable technicality under Article 159, following Salat on the limits of the oxygen principle.
Effect of striking out the supporting affidavit on the motion
The application was rendered incompetent for want of the affidavit required under Order 51 Rule 4
Order 51 Rule 4 mandates that where a motion is grounded on affidavit evidence, a copy of the affidavit must be served. Without a compliant affidavit the motion cannot stand, as it requires evidence to sustain the grounds pleaded.
Reinstatement of appeal dismissed for non-compliance
Reinstatement declined; delay inordinate, appeal incompetent under section 79G, and no sufficient cause shown
Applying Ngugi v Thogo, Ivita v Kyumbu and the advocate-mistake line of cases, the court weighed the duty of the litigant against counsel's blunders. The appeal was filed outside the section 79G period, making it incompetent, and no reasonable explanation was offered for the delay of about 220 days in seeking reinstatement.
Costs
Costs follow the event and were awarded to the 1st Respondent under section 27 of the Civil Procedure Act
Section 27 of the Civil Procedure Act vests discretion on costs; a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. The 1st Respondent having successfully opposed the motion, costs were awarded to him.
Legal principles established
#- An unsigned, uncommissioned document is not an affidavit and has no probative value
- Defects in commissioning an affidavit under sections 4 and 5 of the Oaths and Statutory Declarations Act are not mere technicalities curable under Article 159
- A notice of motion grounded on affidavit evidence cannot stand without a duly filed compliant affidavit, per Order 51 Rule 4
- A litigant has a duty to pursue prosecution of his or her case and cannot rely solely on an advocate's mistake
Court orders
#- 1.The Notice of Motion dated 5th March 2026 is hereby dismissed
- 2.The order for reinstatement of Appeal No. E020 of 2025 for non-compliance is hereby dismissed
- 3.All consequential orders herein are declined
- 4.Costs of the application are awarded to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Eldoret
- Eldoret MCELC E074 of 2021
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in land matters
Relief refused
#Setting aside the order dismissing Appeal No. E020 of 2025 and reinstating the appeal
Supporting affidavit unsigned and uncommissioned, rendering the application incompetent; appeal filed out of time under section 79G and no sufficient cause for reinstatement shown
Enlargement and condonation of delay
Consequential to dismissal of reinstatement; no reasonable explanation for the second limb of delay
Leave for M/s Kipchenger & Company Advocates to come on record
Consequential prayer that could not be sustained once reinstatement was refused
Stay of execution of the judgment/decree delivered 26th September 2024 in Eldoret MCELC E074 of 2021
Consequential prayer that could not be sustained once reinstatement was refused
Costs
Costs of the application are awarded to the 1st 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.
An unsigned, uncommissioned document is not an affidavit at all. It has no probative value.
The Honourable court therefore hereby strikes out the purported supporting affidavit of the Applicant herein as it is incurably defective.
Accordingly, the following orders are issued herein; a) The Notice of Motion dated 5th March 2026 is hereby dismissed.
Costs of the application are awarded to the 1 st Respondent.
Issues in the judgment
#Typographical error in the upshot paragraph
Order (b) is oddly worded, dismissing 'the order for reinstatement' rather than the prayer
Court assesses reinstatement merits after striking out the supporting affidavit and declaring the motion incompetent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peris Jelimo Kemei v Abraham Kipkosgei Chelanga & The Land Registrar Uasin Gishu County", Case Analysis (2026). ELC Appeal Case No. E20 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6104/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.