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ELCAllowedNot stated in the judgment (appeal against the ruling in Kiambu PMCCC Number 73 of 2009)· [2019] KEELC 1044 (KLR)

Albert Mburu Karinga v Peter Mambo Karinga & another [2019] KEELC 1044 (KLR)

High Court of Kenya
29 October 2019
BEB M Eboso
1,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court set aside a judgment entered without proof that the defendant was properly served with court summons, restoring his right to defend his land.

What this practically means

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Executive summary

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This was a first appeal to the High Court (B M Eboso J) against a ruling by Hon D A Okundi (PM) in Kiambu PMCCC Number 73 of 2009 dismissing the appellant's application to set aside an ex-parte judgment and to summon the process server for cross-examination. The underlying suit, filed by the respondents against their sibling, sought eviction of the appellant from a parcel of land carved out of the estate of their late father, Karinga Njihia, whose estate had been distributed through a confirmed grant of probate in Nairobi High Court Succession Cause Number 140 of 1988. The appeal was canvassed by written submissions; the appellant argued defective service, unlawful subdivisions contrary to the confirmed grant, and the need to defend the suit, while the respondents contended the suit property had been sold to a third party and the appeal was nugatory. The court analysed the three grounds of appeal and found that the respondents bore the burden, under Section 109 of the Evidence Act, of proving service of summons; they merely asserted service without annexing the process server's affidavit or explaining where, by whom and when service occurred. The trial court's finding that the abandonment of the plea to cross-examine the process server spent the issue of service was gravely erroneous, since in the absence of prima-facie evidence of service cross-examination was unnecessary. The court further held that the trial court erred in shutting the appellant out of the seat of justice on the ground that his draft defence consisted of mere denials; imperfect particulars of fraud were not fatal at that stage. The appeal succeeded, and the ex-parte judgment and all consequential orders in Kiambu CMCC Number 73 of 2009 were set aside, with leave for the appellant to file his defence; each party was to bear their own costs of the appeal.

Key legal issues

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01

Whether service of summons to enter appearance was proved

Holding

The respondents did not discharge the burden of proving service; the trial court gravely erred in finding the issue spent because the appellant abandoned the plea for cross-examination of the process server.

Reasoning

The respondents merely asserted in a replying affidavit that the appellant was served, without annexing the process server's affidavit or explaining where, by whom and when service occurred. Section 109 of the Evidence Act placed the burden of proving service on the respondents, and they did not discharge it. Without prima-facie evidence of service, cross-examination of the process server was unnecessary, so abandoning that plea did not spend the issue.

p. 2
02

Whether the appellant had a defence warranting a hearing

Holding

The trial court erred in denying the appellant the chance to ventilate his defence; mere denials and imperfect particulars of fraud in a draft defence are not fatal at that stage.

Reasoning

The right to a hearing in a land dispute cannot be gainsaid. The respondents did not present key documents on the subdivision to dispel allegations of fraud. Further, the appellant would have had time to refine and, without leave, amend the draft defence upon receipt of a reply. Shutting the appellant out of the seat of justice on the ground of mere denials was erroneous.

p. 3

Legal principles established

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  • The burden of proving that summons to enter appearance were duly served lies on the party asserting service, under Section 109 of the Evidence Act
  • A party seeking to set aside an ex-parte judgment need not cross-examine a process server where no prima-facie evidence of service has been tendered
  • A defendant applying to set aside an ex-parte judgment should not be shut out merely because the draft defence contains denials or imperfectly pleads fraud at that stage

Court orders

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  1. 1.The trial court's dismissal order made on 21/10/2010 is set aside and substituted with an order setting aside the ex-parte judgment entered against the defendant (present appellant) in Kiambu CMCC Number 73 of 2009 together with all consequential orders made in the said suit
  2. 2.The appellant shall file his defence in the said suit and the suit shall thereafter be disposed as provided under the law
  3. 3.Each party shall bear their costs of this appeal

Authorities

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Legislation

  • Evidence ActSection 109
On appeal from
Principal Magistrate's Court, Kiambu
Kiambu PMCCC Number 73 of 2009
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's ruling (the judgment does not cite the specific constitutional or statutory provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Albert Mburu Karinga v Peter Mambo Karinga & another [2019] KEELC 1044 (KLR)", Case Analysis (2019). Not stated in the judgment (appeal against the ruling in Kiambu PMCCC Number 73 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1044/eng@2019-10-29

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