Paul Odido v Abdul Hakim Abeid & 2 others [2021] KEELC 1960 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Service of summons and the affidavit of service
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.
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.
Whether the draft defence raised triable issues
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.
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.
Alleged defective respondents' affidavit (undated and uncommissioned)
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.
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.
Absence of Notice of Entry of Judgment before execution
Even if true, that is an issue over the manner of execution and not a ground to set aside the judgment.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Watchdog Limited v Obwege & 6 others (Civil Appeal E145 of 2023) [2025] KEELRC 241 (KLR)[2025] KEELRC 241 (KLR)31 Jan 2025
Cite this brief
#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.