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ELCDismissedAppeal from Migori CMCC No. 512 of 2018· [2023] KEELC 953 (KLR)

Odek v Mwagi & another (Environment and Land Appeal E018 of 2022) [2023] KEELC 953 (KLR)

Environment and Land Court / High Court seat at Migori
13 February 2023
MKMohamed N. Kullow
2,383 words in judgment
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The bottom line

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Kenya's Migori court dismissed an appeal to set aside an ex parte judgment because the appellant was properly served, delayed without explanation, and had no real defence.

What this practically means

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Executive summary

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This first appeal challenged a ruling by Hon. P. Areri, Principal Magistrate, in Migori CMCC No. 512 of 2018 delivered on December 22, 2020, dismissing the Appellant's application dated September 15, 2020 to set aside ex parte proceedings of November 8, 2018 and the judgment of September 3, 2019. The Appellant argued that he was never served with hearing or judgment notices, that pleadings had not closed when the matter proceeded to hearing, that pre-trial processes were not undertaken, that he was wrongly found guilty of laches, and that he had a good defence on record. The Respondent maintained that service was effected via affidavits of service and that the Appellant ignored notices. Mohamed N. Kullow, J., disposed of the appeal on written submissions. Framing the sole issue as whether the court should interfere with the trial court's exercise of discretion, the judge, as a first appellate court, re-evaluated the record. He held that pleadings closed upon filing of the Statement of Defence and accompanying documents, making the November 2018 hearing properly scheduled. Applying the qualified presumption in favour of process servers, and noting the Appellant never contested the affidavits of service nor sought to cross-examine the process server, the court found service duly effected and the judgment regular, thus not one to be set aside ex debito justitiae. The Appellant also failed to demonstrate a triable defence, the defence being mere blanket denials, and did not account for the delay. The appeal was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Service of hearing notice

Holding

The Appellant was duly served with the hearing notice and was aware of the hearing date of 08/11/2018; the judgment of 03/09/2019 was regular

Reasoning

Several affidavits of service were on record sworn by the process server. Under the presumption in favour of process servers, the burden lay on the party questioning service to show the return was incorrect. The Appellant never contested the affidavits or applied to cross-examine the process server, so the returns stood as sufficient evidence of regular service.

p. 4
02

Closure of pleadings

Holding

Pleadings closed upon filing of the Statement of Defence and accompanying documents; the hearing on 08/11/2018 was not premature

Reasoning

Order 7 prescribes timelines for filing defence and accompanying documents, and Order 11 provides for pretrial questionnaire and conference after close of pleadings. The defence was filed on 23/07/2018; the hearing was nearly three months after close of pleadings and two months after the pretrial conference, so the Appellant's complaint was untenable.

p. 3
03

Defence on the merits

Holding

The Appellant's Statement of Defence contained blanket denials without plausible explanation, so the court could not exercise discretion in his favour

Reasoning

Even for a regular judgment, setting aside requires demonstration of a triable issue. The defence merely denied the Respondent's allegations without rebuttal or justification, and the Appellant failed to explain or account for his inaction between filing the defence in July 2018 and learning of the judgment in August 2020.

p. 5

Legal principles established

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  • In the absence of any contest on an affidavit of service, there is a presumption of service in favour of the process server and the return of service is sufficient and admissible evidence
  • A regular ex parte judgment will not usually be set aside unless the applicant demonstrates a defence on the merits raising a triable issue

Court orders

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  1. 1.The Memorandum of Appeal dated 4th February 2021 is dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 7 Rule 5
  • Civil Procedure RulesOrder 11 Rule 2
  • Civil Procedure RulesOrder 11 Rule 3

Cases cited (5)

  • Kenya Ports Authority v Kunston (Kenya) Ltd
    [2009] 2 EA 212
  • Justus Kariuki Mate & another v Martin Nyaga Wambora & another
    [2014] eKLR
  • Miruka v Abok & another
    [1990] KLR 544
  • MB Automobile v Kampala Bus Service
    [1966] EA 480
  • Patel v East Africa Cargo Handling Services Ltd
    [1974] E.A. 75
On appeal from
Principal Magistrate's Court, Migori
Migori CMCC No. 512 of 2018
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's ruling (duty of first appellate court to re-evaluate evidence)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Odek v Mwagi & another (Environment and Land Appeal E018 of 2022) [2023] KEELC 953 (KLR)", Case Analysis (2023). Appeal from Migori CMCC No. 512 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/953/eng@2023-02-13

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