MATHEWS ONDIEK CHIAGRA AND SILVANUS OWINO KOYO VS COUNTY GOVERNMENT OF KISUMU AND MINISTRY OF LANDS, PUBLIC WORKS, HOUSING, AND URBAN DEVELOPMENT AND 4 Others

Vide the Notice of Motion application dated 2/5/2025 the applicant who is the 1^st Respondent in the petition seeks for orders that: -

1. THAT the application be certified as urgent and service thereof be dispensed with at first instance.
2. THAT an Order do issue into this honourable court for purposes of varying, reviewing and/or setting aside the conservatory/injunctive orders issued on the 28^th day of April, 2025 in this current Environment and Land Petition No. E001 of 2025.
3. THAT an order staying the effect of the said conservatory/injunctive orders pending the hearing and determination of this application.
4. THAT in the event the honourable court declines to issue the above orders, the Applicant herein be granted orders to seek damages payable to its Contractor and agent; and damages for repair works on the perimeter wall, from the petitioners/Respondents herein for the duration of validity of the conservation/injunction orders.
5. THAT the honourable court be pleased to order and/or direct the OCS Obunga Police Station to ensure security of the Applicant’s land, personnel, and materials on site.
6. THAT costs of this application be provided for.

The applicant’s case is that it is the registered owner of the suit land. That conservatory injunctive orders were issued in this matter by the honourable court on 28^th April 2025 before the applicant could be heard and they halted the construction of the University’s perimeter wall and further prohibited trespass onto the land pending the hearing and determination of the application dated 4^th April 2025. That the conservatory orders were issued without due regard to the applicant’s interests and financial prejudice that would be suffered by the applicant.

The application was supported by the averments in the Supporting Affidavit of Michael Ingutia sworn on 2^nd May 2025.

In response to the application, the Petitioners filed Grounds of opposition dated 8^th May 2025 and an application of even date seeking that the court expunges from the court record the Supporting Affidavit of Michael Ingutia sworn on 2/5/2025. The petitioners also sought that the court expunges the Replying Affidavit to the application dated 4/4/2025 sworn by Michael Ingutia on 2/5/2025, that the court dismisses the application dated 2/5/2025 for lack of evidence in support and that the application dated 4/4/2025 be allowed for being unopposed.

In reply to the Petitioner’s application dated 8/5/2025, the 1^st Respondent filed Grounds of opposition dated 9/5/2025 which I have taken into account.

Both applications were argued together orally on 9^th May 2025. 

I have considered the applications, the grounds in support and in opposition thereof and the submissions made.

The 1^st Respondent’s application has been challenged on the grounds inter alia that it is fatally defective for lack of evidence in support. That the Supporting Affidavit which contains the evidence in support, having been drawn and commissioned by advocates in the employment or practicing with the 1^st Respondent, is fatally defective and should be expunged from the record.

Section 4 of the Oaths and Statutory Declaration Act provides for the powers of commissioner for oaths.  The proviso to Section 4(i) prohibits a Commissioner for Oaths from exercising the powers given by the section in any proceedings or matter in which he is the Advocate for any of the parties to the proceedings or concerned in the matter or clerk to any such Advocate or in which he is interested.

The Supporting Affidavit was drawn by Teresia Irura, Senior Legal officer of the 1^st Respondent. Counsel for the petitioners submitted and exhibited evidence in paragraph 4 of the Supporting Affidavit to the application dated 8/5/2025 that the Commissioner for Oaths who commissioned the Affidavit practices as an advocate at the 1^st Respondent. It was not denied that both the advocate drawing the Affidavits and the advocate commissioning them work with the 1^st Respondent.

The essence of commissioning affidavits before a Commissioner for Oaths is to verify the authenticity and validity of the Affidavit for use in legal proceedings hence the need for an independent Commissioner for Oaths. A party cannot verify the authenticity of its own Affidavits for use in court proceedings.

For the fore going reasons, the court finds that the Supporting Affidavit to the application dated 2/5/2025 being in breach of the provisions of section 4 of the Oaths and Statutory Declarations Act is fatally defective and hereby expunges it from the record. Similarly, the Replying Affidavit sworn by the same deponent and drawn and Commissioned in similar manner on the same date is hereby expunged from the record.

The effect of this is that prayers 3 and 4 of the petitioner’s application dated 8^th May 2025 are allowed with the result that the 1^st Respondent’s application dated 2/5/2025 stands dismissed.

Even if the court were to decline to expunge the Supporting Affidavit and consider the application dated 2/5/2025 on the merits, the order sought to be reviewed is an interim order pending hearing and determination of the petitioner’s application dated 4/4/2025. The hearing of the application dated 4/4/2025 is ongoing by way of written submissions and is scheduled for mention on 22/5/2025 for a date for ruling.  The interim order was entered into by consent and in the presence of Counsel for both parties herein.

The court record shows that when the matter came up for hearing of the petitioner’s application dated 4/4/205 on 28/4/2025 directions were taken by consent of all Counsel present inter alia that prayer 2 of the said application be allowed in the interim period pending the inter parties hearing and determination of the application. Prayer 2 of the application was a prayer for the conservatory orders now complained of in the present application.

Further directions in the consent order were that the application be canvassed by way of written submissions to be filed within given timelines and the matter was set for mention on 22/5/2025 for a date for ruling.

Counsel for the 1^st Respondent who was party to the proceedings of 28/4/2025 and the consent order now submits that the 1^st Respondent did not have a chance to be heard and that the 1^st Respondent will suffer financial prejudice if the orders sought herein are not granted.

The grounds for setting aside a consent order are well settled.  In the case of Brooke Bond Liebeg Ltd -vs-  Mallya  (1975) EA 266 at 269 the court held that;-

“A court cannot interfere with a consent Judgment except in such circumstances as would afford a good ground for varying or rescinding a contract between the parties”

In Kenya Commercial Bank Ltd Vs Specialized Engineering Co. Ltd (1982) KLR 485 the court held that; -

“A consent order entered into by Counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or misrepresentation or ignorance of such facts, in general for reasons which would enable the court to set aside an agreement”

None of these grounds have been demonstrated in the application dated 2/5/2025.

For the foregoing reasons the court finds that the 1^st Respondent’s application dated 2/5/2025 is not only fatally defective but also lacking in merit and hereby dismiss it.  No order as to costs.

The matter will be mentioned on 22^nd May 2025 in accordance with the directions given on 28/4/2025.

Ruling, dated and signed at Vihiga and read virtually this 15^th day of May, 2025 through Microsoft Teams online application.

E. ASATI,

JUDGE.

In the presence of:

Ajevi - Court Assistant.

Mrs Koome for the 1^st Respondent.

Billy Janji for the Petitioners.