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MagistrateAllowedNot stated in the judgment

Nduta v Kagwanja t/a Hotel Patron & 2 others (Employment and Labour Relations Cause E072 of 2021) [2026] KEMC 189 (KLR)

Magistrates' Court
25 June 2026
437 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This first-instance ruling by the Senior Principal Magistrate's Court at Nakuru dealt with objection proceedings filed by an objector by application dated 26/08/2024, seeking declarations that the objector was the lawful owner of goods attached by the interested party on 19/08/2024, that the attachment was unlawful, unprocedural, null and void ab initio, and costs. The claimant (decree holder), Serah Nduta Ndungu, responded by a replying affidavit dated 27/11/2024 which, as the court noted sua sponte, was not signed by the deponent. Applying the Supreme Court's decision in Gideon Sitelu Konchella v Julius Lekakeny Ole Sunkuli & 2 Others [2018] eKLR, the court held that an affidavit that is neither signed nor commissioned is fatally defective for contravening the requirements for making affidavits, and that the claimant's affidavit failed to comply with sections 4 and 5 of the Oaths and Statutory Declarations Act. It struck out the replying affidavit as if not filed. The objector's application was thereby unopposed; on reviewing the supporting affidavit and evidence, the magistrate found merit in the application and allowed it as prayed, with costs to the objector. The court thus declared the objector the lawful owner of the attached goods and condemned the attachment, and awarded costs of the application against the claimant/decree holder as sought.

Questions the Court framed

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

  1. 1.Whether the unsigned affidavit sworn by the claimant has a legal basis
  2. 2.Whether the objector is the lawful owner of the goods attached by the interested party
  3. 3.Whether the attachment of the objector's goods on 19/08/2024 was unlawful, unprocedural, null and void ab initio

Key legal issues

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01

Validity of an unsigned affidavit

Holding

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.

Reasoning

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.

p. 2
02

Court's duty to scrutinise evidence sua sponte

Holding

Even where neither party raises the defect, the court has a duty to scrutinise applications and responses and to disallow evidence irregularly adduced.

Reasoning

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.

p. 1
03

Objector's claim over attached goods

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The replying affidavit of Serah Nduta Ndungu struck out as if not filed
  2. 2.The objector's application dated 26/08/2024 allowed as prayed
  3. 3.Costs of the application to the objector

The bench

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

Wrote the judgment

Jurisdiction invoked
Objection proceedings in execution under the court's decree-execution powers; specific statutory provision not stated in the judgment

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.

I therefore struck it out as if it was not filed. This leaves the objector’s application and its supporting afidavit as unopposed and having gone through the evidence therein and the orders sought, I do find merit in it and do hereby grant the same as prayed with costs.
p. 2Final orders - striking out unsigned affidavit and allowing the application
any afidavit that is not signed or commissioned is fatally defective for contravening all the legal requirements for making an afidavit
p. 2Fatal defect in unsigned/uncommissioned affidavits
this court has a duty in principal to scrutinize the applicants and the response therein and to disallow any evidence unproceduraly or irregularly adduced
p. 1Court's duty to scrutinise evidence sua sponte

Issues in the judgment

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minor

The claimant's replying affidavit is dated 27/11/2024, after the application of 26/08/2024 and after the attachment of 19/08/2024; the judgment gives no explanation for this timing.

minor

The judgment inconsistently spells the claimant's name ('Serah Nduta Ndungu' and 'Srah Nduta Ndungu').

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, "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.