Njagi v Njau (Environment and Land Appeal 5A of 2019) [2023] KEELC 193 (KLR)
The bottom line
#A Kenyan court dismissed an appeal because the appellant never proved his claims that court documents were forged and that he was never served.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal against the dismissal of the application to set aside ex-parte judgment had merit
The appeal was dismissed; the appellant failed to discharge the burden of proving non-service and forgery of the memorandum of appearance
The court held that the court has discretion to set aside default judgment on just terms, but the appellant did not cross-examine the process server and did not prove the alleged forgery of the memorandum of appearance. Fraud allegations must be strictly proved, and the burden lay squarely on the appellant. Finding no grounds to fault the trial court, the appeal was dismissed with no orders as to costs.
Burden of proving forgery of the memorandum of appearance
The burden lay on the appellant, who alleged forgery; the allegation was a mere statement, not proved
Sections 107, 109 and 112 of the Evidence Act place the burden of proving a fact on the party asserting it. As the appellant claimed the memorandum of appearance was a forgery, it was upon him to prove non-authenticity. Allegations of fraud require strict proof to a standard higher than the ordinary balance of probabilities, per Kinyanjui Kamau v George Kamau.
Presumption of service where the process server is not cross-examined
In the absence of cross-examination of the process server, the averments of service are presumed correct
Although the appellant expressed an intention to cross-examine the process server, this was never done and no such prayer was included in the application. Following Shadrack arap Baiywo v Bodi Bach, the court presumed the process server's averments correct, since an affidavit of service unchallenged is sufficient evidence of the regularity of proceedings.
Legal principles established
#- A court has discretion to set aside or vary default judgment upon such terms as are just, to avoid injustice or hardship resulting from inadvertence or excusable mistake or error
- There is a presumption of service as stated in the process server's report, and the burden lies on the party questioning it to show that the return is incorrect
- Allegations of fraud must be pleaded and strictly proved to a standard higher than balance of probabilities
Court orders
#- 1.The memorandum of appeal dated April 12, 2019 is dismissed
- 2.No orders as to costs
- On appeal from
- Chief Magistrate's Court, Narok
- Narok CMCC No. 199 of 2016
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court ruling (memorandum of appeal dated April 12, 2019); no specific provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njagi v Njau (Environment and Land Appeal 5A of 2019) [2023] KEELC 193 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/193/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.