Nduta v Kagwanja t/a Hotel Patron & 2 others (Employment and Labour Relations Cause E072 of 2021) [2026] KEMC 189 (KLR)
The bottom line
#A Nakuru court declared goods attached in execution belonged to the objector, after striking out the claimant's unsigned affidavit as legally worthless.
What this practically means
#Executive summary
#Key legal issues
#Validity of an unsigned affidavit
The claimant's replying affidavit, though dated, was unsigned and failed to comply with sections 4 and 5 of the Oaths and Statutory Declarations Act; it was struck out as if not filed, leaving the application unopposed.
The court noted the replying affidavit sworn by Serah Nduta Ndungu was not signed by the deponent. Relying on the Supreme Court's decision in Gideon Sitelu Konchella v Julius Lekakeny Ole Sunkuli, where a similar affidavit was held to have no legal value, the court held that an unsigned affidavit violates the formal requirements under sections 4 and 5 of the Oaths and Statutory Declarations Act and must be expunged.
Court's duty to scrutinise evidence sua sponte
Even where neither party raises the defect, the court has a duty to scrutinise applications and responses and to disallow evidence irregularly adduced.
The court observed that although the unsigned status of the replying affidavit was not raised by either party, it was duty-bound in principle to examine the procedural propriety of the evidence before it and to strike out evidence that was unprocedurally or irregularly adduced.
Objector's claim over attached goods
With the replying affidavit struck out, the objector's application stood unopposed and, on the evidence, was found to have merit and allowed as prayed.
Once the defective affidavit was removed, no answer remained to the objector's claim of ownership of the attached goods and the challenge to the attachment of 19/08/2024. The court went through the objector's evidence and supporting affidavit, found merit, and granted the declaratory orders sought together with costs.
Legal principles established
#- An affidavit that is not signed or commissioned is fatally defective and has no legal value; the matter proceeds as if no such affidavit was filed.
Court orders
#- 1.The replying affidavit of Serah Nduta Ndungu struck out as if not filed
- 2.The objector's application dated 26/08/2024 allowed as prayed
- 3.Costs of the application to the objector
- Jurisdiction invoked
- Objection proceedings in execution under the court's decree-execution powers; specific statutory provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nduta v Kagwanja t/a Hotel Patron & 2 others (Employment and Labour Relations Cause E072 of 2021) [2026] KEMC 189 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/189/eng@2026-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.