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ELCStruck OutEnvironment and Land Case E001A of 2023· [2026] KEELC 6140 (KLR)

Pepo Huru Lifestyle Ltd v Bertoni & another

Environment and Land Court
1 October 2026
FNFM Njoroge
2,668 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a defendant's affidavit sworn over video from Italy because it lacked the required electronic evidence certificate, killing his stay application.

What this practically means

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Executive summary

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The Defendants in an Environment and Land suit at Malindi moved the court by Notice of Motion dated 6th June 2026, principally seeking a stay of the hearing of the suit - including their counterclaim for rent arrears, mesne profits, damages and vacant possession - pending criminal proceedings against the trustees of the estate of the late Chipande Chirao Horomwe in Criminal Case No. E540 of 2025 (Kilifi) for intermeddling with the estate. The Defendants asserted that the criminal case concerned the same transaction underlying their purchase agreement with the deceased, and that proceeding with the civil suit risked inconsistent findings, self-incrimination and a pyrrhic victory on title. The Plaintiff opposed, attacking the supporting affidavit of Guido Bertoni as fatally defective: the deponent admitted being in Peschiera del Garda, Italy, and appearing before the Commissioner for Oaths virtually, while the jurat recorded swearing at Malindi, with no certificate under Section 106B of the Evidence Act. The Plaintiff also argued that the charged persons were the trustees, not the Defendants, and that the suit predates the criminal charge. The court framed two issues: the competence of the affidavit, and whether a stay was warranted. Applying its own reasoning in Dardanelli v Tilito, it held that virtual commissioning requires disclosure of the evidentiary basis of the online interaction and a Section 106B certificate, and that Article 159(2)(d) cannot cure such substantive defects. The affidavit was struck out; the application, left without evidentiary foundation, was struck out and dismissed with costs to the Plaintiff. The merits of the stay were left open for a competent future application, and the suit was set down for mention on 22 October 2026.

Key legal issues

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01

Competence of the Supporting Affidavit sworn virtually from Italy with a jurat stating Malindi

Holding

The affidavit is fatally defective for want of a Section 106B Evidence Act certificate and for the jurat discrepancy; it is struck out.

Reasoning

The deponent admitted being in Peschiera del Garda, Italy, and appearing before the Commissioner for Oaths virtually, yet the jurat records swearing at Malindi. Section 5 of the Oaths and Statutory Declarations Act requires the jurat to state truly the place of swearing. Where virtual commissioning is alleged, the evidentiary basis of the online interaction must be disclosed, and a Section 106B(4) certificate is required for electronically produced records. None was provided; submissions from the Bar cannot supply that evidentiary foundation.

p. 5
02

Whether the suit should be stayed pending criminal proceedings against the estate's trustees

Holding

Not determined; the application could not survive the striking out of its supporting affidavit.

Reasoning

Because the application was substantially founded on the matters deposed to in the Supporting Affidavit, once that affidavit was struck out the application was left without evidentiary foundation. Any consideration of the stay would be academic. The court left the substantive questions open for a competent future application.

p. 5

Legal principles established

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  • Where an affidavit is commissioned virtually or transmitted electronically, the process must be supported by a certificate under Section 106B of the Evidence Act; absence of such certificate is fatal to the affidavit.
  • A commissioner for oaths must state truly in the jurat the place and date the oath is taken; a jurat recording a place where the deponent admittedly was not is a substantive defect.
  • Article 159(2)(d) cannot be invoked to validate a process where the law prescribes substantive safeguards for the taking and commissioning of sworn evidence.

Court orders

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  1. 1.The Supporting Affidavit of Guido Bertoni purportedly sworn on 6th June 2026 is hereby struck out
  2. 2.The Notice of Motion dated 6th June 2026, consequently being unsupported by a competent affidavit, is hereby struck out
  3. 3.The application dated 6th June 2026 is dismissed with costs to the Plaintiff/Respondent
  4. 4.The present suit shall be mentioned on 22/10/26 for directions

Authorities

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Legislation

  • Civil Procedure RulesOrder 41 Rule 1
  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 159(2)(d)
  • Evidence ActSection 106B(1)
  • Evidence ActSection 106B(4)
  • Oaths and Statutory Declarations ActSection 5

Cases cited (3)

  • Dardanelli & 6 others v Tilito & 3 others
    (Land Case E041 of 2024) [2025] KEELC 392 (KLR)

    Legality of an affidavit allegedly commissioned through a virtual interaction; certificate under Section 106B required, absence fatal.

  • Gikonyo v Director of Public Prosecutions & another
    [2025] KEHC 15582 (KLR)

    Cited with authority in support of the Dardanelli decision on virtual commissioning.

  • In re Estate of Richard Kanampiu Nanchu (Deceased)
    [2025] KEHC 16491 (KLR)

    Cited with authority in support of the Dardanelli decision on virtual commissioning.

Jurisdiction invoked
Environment and Land Court jurisdiction; application under Order 41 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution

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, "Pepo Huru Lifestyle Ltd v Bertoni & another", Case Analysis (2026). Environment and Land Case E001A of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6140/eng@2026-10-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.