Mwandi v Songe (Environment and Planning Miscellaneous Application E005 of 2024) [2026] KEELC 2399 (KLR)

2. That equally, the verifying afidavit dated 18th February, 2025 is incurably incompetent for being in acute violation of Section 4 (1) of the Oaths and Statutory Declarations Act. 3. That the verifying afidavit being fatally defective renders the Plaint incompetent and the entire suit is liable to be struck out. 4. That the suit as filed is therefore a nullity in law, incurably defective and unsustainable. 3. The preliminary objection was canvassed by way of written submissions. 4. In the Defendant’s submissions dated 3rd November 2025, Counsel contended that the Plaintifi instituted the instant suit through the law firm of Dola Magani & Co. Advocates vide the Plaint and verifying afidavit sworn on 18th December 2024. That the verifying afidavit was drawn and commissioned by the same law firm. 5. Counsel identified two issues for determination namely: a. whether the Plaint and the verifying afidavit thereto is incurably incompetent for being in acute violation of Section 4(1) of the Oaths and Statutory Declarations Act; and Who should bear the costs of this application. 6. Citing the provisions of Section 4(1) of the Oaths and Statutory Declarations Act, Counsel contended that it is an express and mandatory provision of law that an advocate appearing for a party shall not commission the party’s afidavit. Reliance was placed on the case of James Francis Kariuki & Another -vs- United Insurance Co. Ltd Civil Appeal No. 1450 of 2000 to buttress the submission that the suit herein is incurably defective as the verifying afidavit was drawn and commissioned by the same advocate who appears for the Plaintifi. Counsel urged the court to dismiss the application with costs. 7. As at the time of writing this ruling, the Plaintifi’s submissions were not on the record in noncompliance with the directions issued on 15th October, 2025. 8. The sole issue for determination is whether the suit ofiends the provisions of Section 4 (1) of the Oaths and Statutory Declarations Act. 9. Section 4 (1) of the Oaths and Statutory Declarations Act outlines as follows: ‘A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any afidavit for the purpose of any court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the High Court or any subordinate court: Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding or concerned in the matter, or clerk to any such advocate, or in which he is interested.’ 10. An avid perusal of the verifying afidavit sworn by Boniface Mwandi on 18th December, 2024 reveals that it was drawn by Dola, Magani & Co. Advocates and commissioned by Dola Indidis practicing under the same law firm. That being the case, the Plaintifi’s advocate violated the proviso to Section 4(1) of the Oaths and Statutory Declarations Act since he is holds an interest in the proceedings on behalf of his client. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2399/eng@2026-04-30 2

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11. In the case of Caltex Oil (Kenya) Limited v New Stadium Services Station Limited & Another [2002] eKLR, Justice Onyango Otieno (as he then was) aptly held as follows: “ I do think that the courts have a duty to rightly interpret the laws and to ensure that they do not condone any breaches of the same laws under any pretenses whatsoever. I still stand by what I did say in the case of James Francis Kariuki & Another Vs. United Insurance Co. Ltd HCCC No. 1450 of 2000 that such an afidavit sworn in violation of section 4 (1) of the Oaths and Statutory Declarations Act is for all intents and purposes not an afidavit as envisaged in law and is not capable of being received under Order 18 Rule 7 as it ofiends a provision of an Act of Parliament and does not represent a mere irregularity either in defect as to form or by misdirection of the parties, or in the title.” 12. Similarly, in the case of Lesrima Simeon Saimanga v Independent and Electoral Boundaries Commission, Returning Officer-Samburu County & Lenolkulal Moses Kasainie [2017] KEHC 2196 (KLR), Lady Justice R.P.V Wendoh observed as follows: “ Also see Rajput v Barclays Bank of Kenya Ltd & 3 others (2004) KLR where J. Emukule held that failure to comply with Section 4 & 5 of Cap 15 Laws of Kenya is a matter of substance and not form and is not curable. In Ismael Suleiman & others v IEBC E.P. 3/2013 Makau J. struck out a petition where supporting afidavits were not commissioned as required under Cap 15… In my view however, the above rule cannot act as a cure for the afidavits commissioned contrary to Section 4 of Cap 15 which is a statutory provision while Order 19 is subsidiary legislation. In my considered view, since the afidavits are commissioned in contravention of Section 4 of Cap 15 they do not amount to afidavits known in law.” 13. More recently in the present case, I took the following position which I still hold, when striking out the Notice of Motion dated 18th December, 2024: “ Section 4(1) of the Oaths and Statutory Declarations Act is a statutory requirement. It cannot be taken as a mere technicality or a mistake of counsel which can be executed under Article 159 of the Constitution. Dola Indidis is the lawyer who drafted the pleadings in this case. He is also the one who commissioned the afidavit in support of the Notice of Motion. It is therefore clear that the case of Kaiser Investments Limited (Supra) cannot assist the Respondent. The application by the Respondent ofiended the proviso to Section 4(1) of the Oaths and Statutory Declaration Act. I therefore find that the supporting afidavit to the Notice of Motion is incompetent and is hereby struck out.” 14. As a consequence of violation of the mandatory provisions of Section 4 (1) of the Oaths and Statutory Declarations Act, I hereby find the verifying afidavit sworn by the Plaintifi on 18th December, 2024 incompetent and proceed to strike it out. 15. On that score, the Plaint has no foundation since it is not accompanied by a valid verifying afidavit pursuant to Order 4 Rule 1(2) of the Civil Procedure Rules. In accordance with Order 4 Rule 1(6) of the Civil Procedure Rules, I hereby proceed to strike out the Plaint dated 18th December, 2024 with costs to the Defendant. It is so ordered. ......................................... https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2399/eng@2026-04-30 3

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HON. E. O. OBAGA JUDGE RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF APRIL, 2026. In The Presence Of: Mr. Wanyama for Respondent. Court assistant – Nyaanga and Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2399/eng@2026-04-30 4

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