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ELCDismissedELC Appeal No. (Mombasa E&L Appeal from Mombasa CMCC E&L No. 43 of 2018 ruling of 11 June 2019)· [2021] KEELC 1960 (KLR)

Paul Odido v Abdul Hakim Abeid & 2 others [2021] KEELC 1960 (KLR)

Environment and Land Court
22 September 2021
4,932 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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If you're served with court papers in Kenya, a process server's sworn affidavit is presumed correct unless you formally apply to cross-examine the server.

What this practically means

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Executive summary

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This is a first appeal from a ruling of the Chief Magistrate's Court at Mombasa dismissing the appellant's application to set aside an ex parte judgment entered against him in E&L No. 43 of 2018, in which the respondents (as plaintiffs) obtained a permanent injunction, eviction and demolition orders over parcel No. 1836/VI/MN-Magongo. The appellant contended he was never served with summons or the plaint, that the process server's affidavit was false, and that his draft defence raised triable issues, including that the suit was sub judice given a pending ELC matter. Munyao Sila J held that affidavits of service sworn by the process server, Paul Odhiambo Outah, evidenced proper service on 19 September 2018 and 24 October 2018, and that the qualified presumption in favour of the process server was never dispelled: the appellant produced no contradicting evidence and, although he deposed an intention to cross-examine the process server, he never made an application under Order 19 Rule 9 by chamber summons or orally. On the draft defence, the court held it was a bare denial; the only issue raised, sub judice, was false because Mombasa ELC No. 189 of 2015 - filed by the appellant himself - had been dismissed for want of prosecution, and Yano J had since disallowed reinstatement. The complaint about the respondents' affidavit being undated and uncommissioned failed, the court having confirmed it was dated and commissioned and that the point was raised too late. The court also held that any defect regarding notice of entry of judgment related to execution, not the judgment's regularity. The appeal was dismissed with costs.

Key legal issues

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01

Service of summons and the affidavit of service

Holding

Service was properly effected; the appellant produced no evidence to cast doubt on the process server's affidavit and did not apply to cross-examine him, so the presumption of correctness stands and the ex parte judgment is regular.

Reasoning

The court applied the qualified presumption in favour of the process server's affidavit. The appellant never made an application under Order 19 Rule 2 to cross-examine the process server; a mere statement in a supplementary affidavit was insufficient. Since service stood, the judgment was regular and could only be set aside if a triable issue existed.

p. 4
02

Whether the draft defence raised triable issues

Holding

No. The draft defence was a bare denial; its only point, that the ELC suit was sub judice, failed because that suit (filed by the appellant) had been dismissed for want of prosecution and the application for reinstatement had also been dismissed.

Reasoning

The court examined the draft defence and found it claimed no interest in the suit property. The sub judice plea was factually false, as Mombasa ELC No. 189 of 2015 had been dismissed for want of prosecution and Yano J had later disallowed reinstatement. Without triable issues, the Magistrate's refusal to set aside the regular judgment was proper.

p. 3
03

Alleged defective respondents' affidavit (undated and uncommissioned)

Holding

The court found the affidavit was signed, dated and commissioned, and in any event the point was raised for the first time on appeal; the mislabelling as 'supporting affidavit' caused no prejudice.

Reasoning

On inspection of the original record the affidavit was dated 22 February 2019 and commissioned, though the jurat extended to another page. The court also held that objections not raised before the trial court cannot be entertained on appeal, and that a mislabelled title did not prejudice anyone.

p. 4
04

Absence of Notice of Entry of Judgment before execution

Holding

Even if true, that is an issue over the manner of execution and not a ground to set aside the judgment.

Reasoning

The court acknowledged the contention but held that irregularity in execution does not go to the regularity of the judgment itself, which had been regularly entered after proper service and formal proof.

p. 5

Legal principles established

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  • There is a qualified presumption in favour of the correctness of an affidavit of service, and the burden lies on the party contesting service to show the return is incorrect; absent an application for cross-examination of the process server, the affidavit stands.
  • A mere deposition in an affidavit of an intention to cross-examine is not an application to cross-examine; the procedure under Order 19 Rule 9 (by chamber summons or orally) must be followed.
  • A regular judgment may only be set aside if the draft defence raises triable issues; a bare denial does not.

Court orders

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  1. 1.Appeal dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 19 Rule 2
  • Civil Procedure RulesOrder 19 Rule 9

Cases cited (9)

  • Selle vs Associated Motor Boat Company Ltd
    [1968] E.A 123
  • Shaffique Allibahi vs. William Ochanda Onduru t/a Ochanda Onguru & Company Advocates & Another
    Commercial Civil Case No. 51 of 2014
  • Multiscope Consulting Engineers vs. University of Nairobi & Another
    Civil Case No. 47 of 2013
  • Bashir Haji Abdullahi vs Adan Mohammed Nooru & 3 Others
    (2014) eKLR
  • Andrew Ochieng & Another (Suing as Legal Representatives of the Estate of George Otieno Ochieng) vs Rongai Workshop & Transport & Another
  • James Kanyiita Nderitu & another vs. Marios Philotas Ghikas & another
    (2016) eKLR
  • Shadrack Arap Baiywo vs Bodi Back
    (1987) eKLR
  • M B Automobile v Kampala Bus Service
    [1966] EA 480
  • Patel v East Africa Cargo Handling Services Ltd
    [1974] E.A. 75
On appeal from
Chief Magistrate's Court, Mombasa (E&L No. 43 of 2018)
Mombasa CMCC E&L No. 43 of 2018
Jurisdiction invoked
First appeal from the Chief Magistrate's Court under the Environment and Land Court Act / Civil Procedure Act (not expressly cited in the judgment)

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, "Paul Odido v Abdul Hakim Abeid & 2 others [2021] KEELC 1960 (KLR)", Case Analysis (2021). ELC Appeal No. (Mombasa E&L Appeal from Mombasa CMCC E&L No. 43 of 2018 ruling of 11 June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1960/eng@2021-09-22

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