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ELCDismissedELCA No. E005 of 2025

Hannah Wahu Njunguna v Joseph Cuthu Munyoike & Paul Kuria Kiguru

Environment and Land Court of Kenya
23 September 2026
3,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a widow's appeal because she could not prove she was never served with court summons, and her defence raised no real issues.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nyahururu against a ruling by Hon. Nyangana Osoro (SRM) delivered on 22nd January 2025, dismissing the appellant's application to set aside a default judgment entered on 24th August 2023 in CMELC E071 of 2021. The 1st respondent had sued as registered proprietor of L.R Nyandarua/Ol Bolossat/283, alleging interference by the defendants; default judgment was entered after the defendants failed to enter appearance. The appellant, widow of the deceased who owned a different parcel (L.R Nyandarua/Ol Joro Orok Salient/21139), applied to set aside the judgment claiming she was never served and that the acknowledgment signature on the summons was a forgery. The trial court dismissed the application, finding service had been effected and no sufficient reasons were given. On appeal, Lucy N. Mbugua J considered the affidavits of service sworn on 5th October 2021 and 7th June 2022, which detailed the documents served, the time, place and identification of the defendant. The appellant did not deny their specific contents. Applying Section 109 of the Evidence Act, the court held the appellant bore the burden of proving the alleged forgery, which she failed to do; moreover, the forgery allegation was raised only in a further affidavit and was never contested before the trial court. The court found the default judgment regular since service was proved, and held the proposed defence was a mere general denial raising no triable issues, as the appellant claimed interest in a different parcel and never questioned the 1st respondent's title. The appeal was dismissed with costs to the 1st respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the judgment of 24.8.2023 should be set aside on account of non-service of summons to enter appearance upon the appellant
  2. 2.Whether the affidavit of service on record confirms that the appellant was served
  3. 3.Whether the appellant's proposed defence raises triable issues warranting exercise of discretion to set aside the default judgment

Key legal issues

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01

Whether the appellant was served with summons to enter appearance

Holding

The detailed affidavits of service dated 5th October 2021 and 7th June 2022 established service; the appellant did not deny their specific contents and bore the burden of proving the alleged forgery of the acknowledgment signature, which she failed to discharge

Reasoning

The process server's affidavits detailed the documents served, date, time, place and how the defendant was identified. The appellant never denied these specific averments. Under Section 109 of the Evidence Act, whoever alleges must prove; the forgery allegation was a mere assertion, raised only in a further affidavit and never contested before the trial court.

p. 18
02

Whether the default judgment was regular or irregular

Holding

The judgment was regular because service of summons had been effected; setting aside a regular judgment is discretionary, not automatic

Reasoning

Relying on Order 10 Rule 11 and James Kanyita Nderitu v Maries Philotas Ghika, the court distinguished regular from irregular default judgments. Since service was proved, the judgment was regular and the court could only set it aside on just terms in the interest of justice, which the trial court properly declined to do.

p. 21
03

Whether the proposed defence raised triable issues

Holding

The proposed defence was a general denial; the appellant claimed interest in a different parcel (L.R Nyandarua/Ol Joro Orok Salient/21139) and did not question the 1st respondent's title to the suit parcel

Reasoning

The appellant admitted her interest lay in a different title from the suit land, and the validity of the 1st respondent's title to parcel 283 was never challenged. Citing Mohamed Ahmed Dahia, the court found no controversy in ownership and held the discretion could not be exercised in the appellant's favour.

p. 23

Legal principles established

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  • Where service of summons is duly effected but a party fails to enter appearance, the resulting default judgment is regular and may be set aside only at the court's discretion on just terms; where service was not effected, the judgment is irregular and must be set aside ex debito justitiae
  • A party alleging forgery of a signature bears the burden of proving it, and an issue not raised before the trial court cannot be entertained on appeal

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Nyahururu
ELC Case No. E071 of 2021
Jurisdiction invoked
First appeal from the Chief Magistrate's Court under the Environment and Land Court Act; appeal against ruling dismissing application to set aside default judgment under Order 10 Rule 11 of the Civil Procedure Rules

Relief refused

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Setting aside of the ruling of 22.1.2025 and reinstatement of CMELC E071 of 2021 for full hearing

No plausible reasons advanced; service was duly effected and the proposed defence was a general denial raising no triable issues

p. 23

Costs

Appeal dismissed with costs to the 1st respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where service was not effected, the judgment is irregular and must be set aside ex debito justitiae
p. 21Irregular default judgment
The appellant has not denied the specific and detailed contents of the aforementioned Affidavits. It is trite law that whoever alleges must prove.
p. 18Burden of proving forgery of service acknowledgment
Thus the issue of forgery was not made a subject of contest before the trial court and cannot therefore be entertained in this appeal
p. 19Issues not raised before trial court cannot be entertained on appeal
this appeal is found to be unmerited, the same is hereby dismissed with costs to the 1st respondent.
Final orders - dismissal of appeal

Issues in the judgment

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minor

Submissions date anomaly: 1st respondent's submissions dated 5th June 2026, yet judgment delivered 23rd September 2026 and appeal filed January 2025

minor

Appellant's name spelled 'Njunguna' in cause title but husband named 'Douglas Njunguna' - possible spelling inconsistency

minor

1st respondent/plaintiff named 'Joseph Cuthu Munyoike' in cause title but 'JOSEPH WANYOIKE' when describing testimony

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, "Hannah Wahu Njunguna v Joseph Cuthu Munyoike & Paul Kuria Kiguru", Case Analysis (2026). ELCA No. E005 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5652/eng@2026-09-23

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