https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10009

**Republic of Kenya** **In the High Court of Kenya at Nairobi** **Milimani Law Courts** **Civil Appellate Division** **Civil Appeal No. E571 of 2025** **Bajaj East Africa Limited…......................................................................... Appellant** ***-Versus-*** **Humphrey Mwangi Gathoni (suing as the administrators** **of the estate of the late mbuthia muraguri (deceased)).......................1ST Respondent** **Eric Oduor……………………………………………………………….….2nd Respondent** **Mamalo Auctioneers………………………………………………………..3rd Respondent** **Monarch Insurance Limited……………………………………..………...4th Respondent** ***(Being an appeal from the ruling of Hon. S.N Muchungi (Mrs) (PM) delivered on 16th May 2025 in Milimani CMCC No. E4053 of 2022)*** **Judgment** 1. **Background** 2. This appeal arises from the ruling of the Honourable S.N. Muchungi (Mrs.), Principal Magistrate, delivered on 16th May 2025 in Milimani CMCC No. E4053 of 2022. The present appeal emanates from the trial court's determination of an application dated 21January 2025 seeking review and setting aside of its judgment delivered on 11 August 2023. 3. The dispute before the subordinate court originated from a road traffic claim instituted by the 1st Respondent against the Appellant and the 2nd Respondent seeking compensation for injuries allegedly sustained in a road traffic accident involving the Appellant's motor vehicle. Upon hearing the suit, the trial court entered judgment in favour of the 1st Respondent on 11 August 2023, awarding damages together with costs and interest. 4. Following the judgment, execution proceedings ensued. The 1st Respondent instructed auctioneers (the 3rd Respondent) who attached the Appellant's movable property in execution of the decree. The Appellant thereafter moved the trial court by a Notice of Motion dated 21 January 2025, brought under the provisions of Sections 80 of the Civil Procedure Act, Order 9 Rule 9(a), Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, seeking, *inter alia*, stay of execution, lifting of the attachment, review and setting aside of the judgment delivered on 11 August 2023 and leave to defend the suit on the merits. 5. The application was opposed by the 1st Respondent in the trial court through a Replying Affidavit sworn on 24 January 2025, to which the Appellant responded by filing a Supplementary Affidavit sworn on 2 April 2025. The parties thereafter canvassed the application by way of written submissions. 6. In a ruling delivered on 16 May 2025, the learned Principal Magistrate declined to review or set aside the judgment dated 11 August 2023, finding that the Appellant had failed to satisfy the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. However, the learned Magistrate found that the execution process undertaken by the 1st Respondent was irregular and consequently allowed the prayers relating to the lifting of the attachment and release of the attached motorcycles. 7. Aggrieved by the refusal to review and set aside the judgment, the Appellant lodged the present appeal. 8. **The Appeal** 9. The Appellant preferred the present appeal vide a Memorandum of Appeal dated 29 May 2025, raising the following grounds of appeal: 10. *The learned trial Magistrate erred in law and fact by disregarding clear and uncontroverted evidence demonstrating that it was not aware of the suit since it was never served with Summons to enter appearance.* 11. *The learned trial Magistrate erred in law and fact by finding that the Judgment delivered on 11th August 2023 (the “underlying Judgment”) was a regular judgment and disregarding clear and uncontroverted evidence demonstrating that the Appellant had neither taken out an insurance policy with the 4th Respondent nor had it instructed any firm of advocates to represent it at trial.* 12. *The learned trial Magistrate erred in law and fact by finding that the issue regarding the Appellant’s representation at trial was not an issue that could be determined by way of the Appellant’s Notice of Motion dated 21th January 2025 (the “Review motion”) in* ***Milimani MCCC No. E4053 of 2022: Humphrey Mwangi Gathoni (suing as the Administrators of the Estate of the Late Mbuthia Muraguri (Deceased)) -versus- Bajaj East Africa Limited & 3 Others*** *for review of the underlying Judgment yet this was an issue touching on discovery of new evidence within the scope and meaning of Order 45, Rule 1 of the Civil Procedure Rules, 2010.* 13. *The learned trial Magistrate gravely erred in law and fact by finding that there was no letter written to the law firm of Messrs. Kibatia & Co. Advocates regarding the issue of its representation at trial, despite clear and uncontroverted evidence demonstrating the contrary.* 14. *The learned trial Magistrate erred in law and fact when she found that the Appellant was duly represented at the trial court’s proceedings and that as such, the Appellant could only seek recourse against the law firm of Messrs. Kibatia & Company Advocates, despite clear and uncontroverted evidence demonstrating the appointment of the said law firm was questionable.* 15. *The learned trial Magistrate erred in law and fact by finding that there were no sufficient grounds to warrant the review of the underlying Judgment despite the Appellant demonstrating the existence of clear and uncontroverted evidence disproving the Appellant’s liability which evidence could not have been discovered by the Appellant even with the exercise of due diligence, was not within its knowledge and could not be produced by it at the time when the underlying Judgment was made.* 16. *The learned trial Magistrate erred in law and fact by reaching the irregular conclusion that the Appellant ought to have sought leave to defend the suit, which conclusion was outside her jurisdictional limit for considering the Review motion.* 17. *The learned trial Magistrate misdirected herself in fact and law by unduly placing a burden on the Appellant to have sought leave to join the new owner of the motorcycles in the Review motion, despite the existence of clear and uncontroverted evidence demonstrating that ownership of the motorcycles had indeed shifted to its new owner prior to the institution of the suit.* 18. *The learned trial Magistrate erred herself in fact and law by faulting framing the question of what ought to have followed upon setting aside of the underlying Judgment yet this was a question that had neither been pleaded nor framed for determination by the parties.* 19. *The learned trial Magistrate made a grave error in fact and law by completely ignoring the Appellant’s submissions and authorities in support of the review motion thereby depriving the Appellant of its right to a fair hearing and right of access to justice.* 20. *The Impugned Ruling is unreasonable, wrong in law and wholly disregards the applicable legal threshold and procedural safeguards set out under statute and the Civil Procedure Rules for review of judgment following the discovery of new and important evidence, thereby occasioning a miscarriage of justice.* 21. *The learned trial Magistrate erred in law in predisposing her mind to a position favourable to the 1st Respondent and against the Appellant and thereby arrived at the wrong decision notwithstanding that the Appellant had furnished sufficient and uncontroverted evidence to warrant an order for review of the underlying Judgment.* 22. *The learned trial Magistrate erred in fact and in law by disregarding binding precedent in support of the Appellant’s case, thereby contravening the doctrine of stare decisis.* 23. **Appellant’s case before the Trial Court** 24. Before the trial court, the Appellant's case was anchored on the Notice of Motion dated 21 January 2025, the Certificate of Urgency, the Supporting Affidavit sworn in support thereof, the Supplementary Affidavit sworn on 2April 2025, the annexures thereto, and the written submissions together with the authorities relied upon. 25. The Appellant contended that it only became aware of the existence of the suit upon the commencement of execution proceedings. It maintained that it had never been served with summons to enter appearance or any other court process and was consequently denied an opportunity to participate in the proceedings that culminated in the judgment delivered on 11 August 2023. It was therefore asserted that the judgment was entered in violation of the Appellant's constitutional right to a fair hearing and the rules of natural justice. 26. The Appellant further contended that the law firm of Gichuhi Ndungu & Company Advocates, which filed a Notice of Appointment dated 15 January 2025 purporting to come on record on its behalf, had never been instructed or authorized by the Appellant to act for it in the proceedings. Similarly, it was averred that the Interested Party, Monarch Insurance Company Limited, had without the Appellant's authority purported to assume conduct of the defence by instructing the firm of Kibatia & Company Advocates to represent the Appellant during the trial. According to the Appellant, it had never been insured by the Interested Party at any material time and no policy of insurance existed between them. Consequently, the Appellant maintained that the defence mounted before the subordinate court was conducted without its knowledge, participation or instructions, and that this explained why no witness was called on its behalf during the hearing. 27. The Appellant further asserted that it had discovered new and important evidence which, despite the exercise of due diligence, was not placed before the trial court at the time judgment was entered. In particular, it was contended that prior to the occurrence of the accident, the Appellant had sold and transferred possession of the subject motorcycle to Nijenge Uwazi Limited pursuant to a Sale Agreement dated 18May 2021. The Appellant argued that the Sale Agreement constituted new and important evidence demonstrating that it was no longer in possession or control of the motorcycle at the material time, and that had such evidence been placed before the trial court, it would have materially affected the outcome of the suit. 28. On the basis of the foregoing, the Appellant maintained that it had satisfied the statutory threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules by demonstrating the existence of new and important evidence, sufficient reason, and exceptional circumstances warranting the review and setting aside of the judgment delivered on 11 August 2023. It further contended that it had a meritorious defence raising bona fide triable issues and urged the court to exercise its discretion in favour of allowing the application so that the dispute could be determined on its merits. 29. **The 1st Respondent's Case at Trial** 30. The 1st Respondent opposed the application through a Replying Affidavit sworn on 24 January 2025, wherein it was maintained that the Appellant's application was devoid of merit and constituted an abuse of the court process. The 1st Respondent contended that the Appellant had failed to satisfy the statutory requirements for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules and that the application was merely an attempt to reopen litigation that had been conclusively determined. 31. The Respondent further maintained that the judgment sought to be reviewed was regular, that no new and important matter had been discovered to warrant review, that no error apparent on the face of the record had been demonstrated, and that the Appellant had not established any other sufficient reason capable of invoking the court's review jurisdiction. 32. **Analysis and Determination** 33. Upon the filing of the present appeal, this Court directed the parties to canvass the appeal by way of written submissions. The record shows that as at 22 May 2026, only the Appellant had complied with those directions. The Respondents were granted a further seven (7) days within which to file submissions and the matter was thereafter fixed for judgment today. Despite the extension of time granted by the Court, only the 4th Respondent filed submissions. 34. Having considered the Memorandum of Appeal, the Record of Appeal, the impugned ruling, the Appellant's written submissions and the 4th Respondent’s submissions, I am of the considered view that the following issues arise for determination: 35. *Whether the learned Principal Magistrate erred in finding that the Appellant failed to satisfy the statutory threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.* 36. *Whether the learned Principal Magistrate properly exercised her discretion in declining to review and set aside the judgment dated 11th August 2023.* 37. *Who should bear the costs of the appeal.* 38. ***Whether The Appellant Satisfied The Legal Threshold For Review*** 39. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the entire record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses who testified before the trial court. The principles governing a first appellate court are now settled. In ***Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123***, it was held that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. Similarly, in ***Peters v Sunday Post Ltd [1958] EACA 142*,** it was observed that although an appellate court has jurisdiction to review the evidence in order to determine whether the conclusions of the trial court should stand, it should exercise that jurisdiction with caution: *It is a strong thing that for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution: It is not enough that the appellate court might itself have come to a different conclusion.* 1. The appeal principally challenges the learned trial magistrate's refusal to review and set aside the judgment delivered on 11 August 2023. The jurisdiction of a court to review its own decree or order is conferred by Section 80 of the Civil Procedure Act and operationalised under Order 45 Rule 1 of the Civil Procedure Rules. Under those provisions, an applicant must establish one or more of the following grounds: the discovery of new and important matter or evidence which, despite the exercise of due diligence, was not within his knowledge or could not be produced at the time the decree was passed, an error apparent on the face of the record, or any other sufficient reason. The application must also be made without unreasonable delay. 2. The principles governing the exercise of that jurisdiction are well settled. In ***National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR)****,* the Court of Appeal held that: *A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.* 1. Similarly, in ***Swai v Kenya Breweries Limited [2014] KECA 883 (KLR)****,* the Court reiterated that review is not an appeal in disguise and cannot be invoked to re-open matters that ought to have been canvassed during the hearing or on appeal. The court stated as follows: *It seems clear to us that the appellant, in basing his review application on the failure by the Court to apply the law correctly faulted the decision on a point of law. That was a good ground for appeal but not a ground for an application for review. If parties were allowed to seek review of decisions on grounds that the decisions are erroneous in law, either because a Judge has failed to apply the law correctly or at all, a dangerous precedent would be set in which court decisions that ought to be examined on appeal would be exposed to attacks in the courts in which they were made under the guise of review when such courts are functus officio and have no appellate jurisdiction. The power to review decisions on appeal is vested in appellate courts. Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court discretionary power to allow review on the three limps therein stated or “for any sufficient reason.” The appellant did not bring his application within any of the limps nor did he show that there was any sufficient reason for review to be granted.* ***a. Whether the Appellant established any of the grounds for review*** 1. Although the Appellant sought review of the trial court judgment on the basis of the three grounds set out under Order 45 rule 1, when the record is seen as a whole, the principal complaint before the trial court was that the judgment entered on 11 August 2023 was irregular for failure to serve summons on the Appellant and hence this forms sufficient reason to review it and set it aside. This in my view, is the first issue for determination as it impacts on the other issues. The Appellant contended that it was never served with summons to enter appearance, was unaware of the proceedings before the subordinate court, never instructed Kibatia & Company Advocates or Gichuhi Ndungu & Company Advocates to represent it and that Monarch Insurance Company Limitedwas never its insurer and therefore lacked authority to appoint advocates on its behalf. It was argued that those circumstances denied the Appellant an opportunity to participate in the proceedings, thereby constituting sufficient reason to warrant the review and setting aside of the judgment. 2. There can be no dispute that allegations of want of service and denial of the right to be heard are serious matters. They implicate not only the rules of natural justice but also the constitutional guarantee of a fair hearing under Article 50(1) of the Constitution. Indeed, where a litigant demonstrates that judgment was obtained without service of summons or without being afforded an opportunity to participate in the proceedings, the court will ordinarily intervene to safeguard the right to a fair hearing. As affirmed by the Court of Appeal in ***James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] KECA 470 (KLR),*** a judgment entered without proper service is an irregular judgment which is liable to be set aside *ex debito justitiae*. 3. Where a party demonstrates that a judgment was entered against it without proper service therefore denying it a right to be heard - in other words that the judgment is irregular, the trial court is obliged to set it aside, even without being moved. The Court of Appeal underscored this in ***James Kanyiita Nderitu & Another (supra)*** as follows: *The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular, it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue. Or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo V Attorney General [1986 - 1989] EA 456).* 1. In advancing its case, the Appellant placed reliance on ***Gulf Fabricators v County Government of Siaya [2020] KEHC 5952 (KLR)*** for the proposition that proper service of summons is the foundation of a fair trial and that the return of service must satisfactorily demonstrate compliance with the requirements governing service of process. It submitted that the alleged defects in service deprived it of the opportunity to participate in the proceedings, thereby rendering the resulting judgment liable to be set aside. 2. Whereas a party may move a trial court under Order 10 rule 11 of the Civil procedure Rules to set aside a judgment, the said rule may only be invoked in respect of a judgment entered in default. The impugned trial court judgment was, however, not entered in default of a defence. The distinction between an application under Order 10 rule 11 for setting aside a judgment in default and an application for review and setting aside an irregular judgment is that whereas the court exercises discretion when moved under Order 10, an irregular judgment entitles an aggrieved party setting aside as of right if it is shown that the judgment was entered without the party being heard. This may be done pursuant to the inherent powers bestowed on courts under Section 3A of the Civil Procedure Act or upon being moved under Section 80 of the Civil procedure Act and Order 45. 3. This court is satisfied that, procedurally, the Appellant’s invocation of Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules in seeking review of the said judgment was the correct procedure. Further, the issues raised by the Appellant being whether summons to enter appearance were served on the Appellant; whether it was aware of the proceedings before the trial court and whether the firm of advocates purportedly on record for the Appellant had been properly instructed to represent it are matters that may constitute sufficient reason for a trial court to review its judgment. 4. The regime under Section 80 of the Civil Procedure Act and Order 45 rule 1 gives the trial court discretion to review its decision upon satisfaction of any of the limbs therein. It has been reiterated that the limb of “any sufficient reason” is separate and should be considered as such when raised by a party seeking review. In ***Swai (supra),*** the court underscored as follows: *As repeatedly pointed out in various decisions of this Court, the words, “for any sufficient reason” must be viewed in the context firstly of Section 80 of the*[*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, Cap 21, which confers an unfettered right to apply for review and secondly on the current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order.* 1. The learned Principal Magistrate correctly appreciated that the application had been brought under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. However, having regard to the nature of the complaints raised and the substantive prayers sought, the trial court engaged with the material placed before it in reaching the conclusion that the impugned judgment was a regular judgment. It found that both defendants were duly served with summons to enter appearance and that the firm of Kibatia & Company Advocates filed a joint defence and participated fully in the trial. The trial court, therefore, found that the Appellant was duly served with the court summons. 2. This Court has independently reconsidered the material that was before the subordinate court. I am satisfied that the Appellant placed before the court material raising bona fide questions regarding whether it had been served with summons, whether the advocates who entered appearance acted with proper authority and whether Monarch Insurance Company Limited had any legal basis for instructing counsel on its behalf. Those issues went to the procedural propriety of the proceedings and deserved substantive judicial interrogation. 3. Order 5 Rule 8 of the Civil Procedure Rules provides as follows in regard to service: *Service to be on defendant in person or on his agent.* *1) Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.* *2) A summons may be served upon an advocate who has instructions to accept service and to enter an appearance to the summons and judgment in default of appearance may be entered after such service.* 1. The Appellant’s case was that the summons in the case before the trial court were not served on it. There was no evidence availed before the court to rebut this assertion. This issue was also tied with the issue whether the Appellant was duly insured by the 4th Respondent who would then instruct counsel to act on its behalf. The Appellant categorically averred that it was not insured by the 4th Respondent who was joined in the proceedings as an interested party at the point of making the application for review. Despite these averments and despite there being no evidence to the contrary from the 1st Respondent on service of summons and 4th Respondent on whether they had insured the Appellant, the trial court concluded that the Appellant had not *“in clear terms disputed that it was duly served summons to enter appearance.”* The basis of the trial court’s conclusion was solely that the Appellant was represented by the firm of Kibatia & Company Advocates who had filed a joint defence. 2. Under Order 5 rule 8(2), service upon an advocate can only be valid where that advocate has instructions to accept the service and to enter an appearance to the summons. It was not enough for the trial court to conclude that since the Appellant was represented, then service had been effected. The 4th Respondent submits that the 1st Respondent did not discharge the onus of proof that service was effected. In any case, the 4th Respondent submits that it could only act in regard to summons in respect of its insured who was the 2nd Respondent and not on behalf of the Appellant. Curiously, the 4th Respondent who had been joined as an interested party before the trial court did not file a response to clarify its relationship, if any, with the Appellant. In submissions filed before this court, counsel has irregularly submitted on matters of facts from the bar that the 4th Respondent only instructed the firm of Kibatia & Company Advocates to act for the 2nd Respondent who was the insured. It is evident that the trial court reached a wrong conclusion by wrongly shifting the burden of proof to the Appellant while the same remained with the 1st Respondent to prove that the Appellant was served with summons to appear. Besides, there was no evidence that the 4th Respondent had insured the Appellant and hence it could receive summons on its behalf. It is my finding that the trial court misdirected itself in this respect. 3. Equally, the Appellant exhibited a Sale Agreement dated 18 May 2021 together with supporting documents asserting that the subject motorcycle had been disposed of prior to the accident. While the 1st Respondent relied on the official records maintained under the Traffic Act showing the Appellant as the registered owner, the competing claims as to legal and beneficial ownership raise bona fide triable issues. The question whether ownership had passed to a third party is a substantive issue that ought to be determined upon a full hearing. 4. In the circumstances, I am persuaded that the Appellant demonstrated sufficient reasons to warrant the setting aside of the judgment so that the dispute may be determined on its merits after all parties have been afforded an equal opportunity to present their respective cases. Such an approach accords with the constitutional imperatives of fair hearing and the long-settled principle that disputes should be determined on their substantive merits. 5. Having determined that the Appellant demonstrated sufficient reason to review the impugned judgment, this court does not find it necessary to delve into the other grounds under Order 45 rule 1. As stated above, the three grounds pleaded are intricately linked with the irregularity of the judgment to the extent that the Appellant did not have an opportunity to adduce the evidence of beneficial ownership. ***b. Whether the application for review was made without unreasonable delay*** 1. Order 45 Rule 1 requires not only that an applicant establish one of the statutory grounds for review, but also that the application be made without unreasonable delay. The requirement of promptitude is an essential prerequisite to the exercise of the court's review jurisdiction. 2. In the present case, the judgment sought to be reviewed was delivered on 11 August 2023, whereas the application for review was filed on 21January 2025, approximately one year and five months later. On its face, that period is considerable and therefore required a satisfactory explanation. 3. The Appellant explained that it only became aware of the existence of the suit upon commencement of execution proceedings in January 2025 and thereafter moved the court without delay. The learned trial magistrate accepted that the execution process itself was procedurally irregular and consequently set aside the attachment. I am satisfied that the delay was sufficiently explained and that the Applicant moved the trial court as soon as they became aware of the proceedings. 4. ***Whether the learned Principal Magistrate properly exercised her discretion in declining to review and set aside the judgment dated 11 August 2023.*** 5. It is trite that the jurisdiction to review a decree or order is discretionary. Equally, the appellate jurisdiction to interfere with the exercise of such discretion is circumscribed. As an appellate court, I am aware that this court should not interfere merely because it would itself have reached a different conclusion. Interference is only warranted where it is demonstrated that the trial court misdirected itself in law, took into account irrelevant considerations, failed to consider relevant matters, or that its decision is plainly wrong. This principle was authoritatively stated in ***Mbogo & Another v Shah [1968] EA 93***, where the Court held that: *A Court of Appeal should not interfere with the exercise of the discretion of a single judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.* 1. The gravamen of the Appellant’s application before the trial court was that it had not been served with summons to enter appearance, had not instructed the advocates who purported to represent it, and had consequently been denied an opportunity to participate in the proceedings. Those allegations called for an inquiry into the procedural regularity of the judgment itself and whether, in the interests of justice, the Appellant ought to have been afforded an opportunity to defend the suit. 2. In the circumstances, I find that the learned Principal Magistrate misdirected herself by failing to find that the Appellant had demonstrated sufficient reason for review and setting aside of the impugned judgment. That constituted an error in the exercise of judicial discretion, thereby entitling this Court to interfere in accordance with the principles enunciated in ***Mbogo & Another v Shah* *(supra)*.** 3. This court also notes that the trial court expressed difficulties in what should ensue if the orders sought for the setting aside of judgment were to be issued. In the trial court’s view, the Appellant had not provided a roadmap of what should happen were the impugned judgment to be set aside. A court of law can never be helpless in such a case. The inherent powers of the court under Section 3A are invoked in such scenarios for the court to make any orders as may be necessary for the ends of justice. As aptly held by the Court of Appeal in ***Kenya Power & Lighting Company Limited vs. Benzene Holdings Limited t/a Wyco Paints [2016] KECA 73 KLR****, “This inherent jurisdiction is a residual intirinsic authority which the court may resort to in order to put right that which would otherwise be an injustice.”* 4. ***Who should bear the costs of the appeal?*** 1. The final issue concerns the costs of this appeal. The general principle governing the award of costs is set out under Section 27(1) of the Civil Procedure Act, which provides that costs shall follow the event unless the court, for good reason, orders otherwise. Even though the Appellant has succeeded in this case, the circumstances of this case being a matter that concerns an unfortunate death caused by a road traffic accident necessitate an order that parties shall bear their own costs. 2. **Conclusion** 3. The Court is satisfied that the material placed before the subordinate court raised substantial questions concerning the Appellant's participation in the proceedings and disclosed a plausible defence touching on the ownership of the subject motorcycle. The competing claims arising from the Sale Agreement, the official searches and the statutory provisions governing ownership under Sections 8 and 9 of the Traffic Act raise bona fide triable issues which ought to be determined after hearing evidence from all the parties. It would therefore be inappropriate for this Court to make definitive findings on those issues at this stage. 4. This court shall uphold the right of parties recognized under Article 50(1) of the Constitution to ventilate their cases on merit before the appropriate forum. Where there exists a genuine question as to whether a party was afforded an opportunity to participate in proceedings, the interests of justice are ordinarily better served by allowing the dispute to be determined on its merits. 5. For the foregoing reasons, this appeal succeeds and is allowed on the following terms: 6. **The judgment delivered on 11th August 2023, together with all consequential orders and proceedings founded thereon, is hereby set aside;** 7. **Milimani CMCC No. E4053 of 2022 is remitted to the Chief Magistrate's Court at Milimani for hearing and determination *de novo* before a magistrate of competent jurisdiction other than Hon. S.N. Muchungi, who shall give such directions as may be necessary for the just, expeditious and proportionate disposal of the suit.** 8. **Each party shall bear its own costs of this appeal** 9. It is so ordered. **Delivered, Dated** and **Signed** at **Nairobi** this **9th** day of **July,** **2026.** **Nabil M. Orina** **Judge** ***Judgment virtually delivered virtually in the presence of:*** *Mr. Wakiaga for the Appellant* *Ms. Yidah for the 4th Respondent* *Linda - Court Assistant*