Christine Wahome v Emmanuel Mwania & Clement Waituika

Wahome v Mwania & another (Civil Appeal E010 of 2025) [2026] KEHC 13370 (KLR) (2 September 2026) (Judgment) Neutral citation: [2026] KEHC 13370 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E010 of 2025 JWW Mong'are, J September 2, 2026 Between Christine Wahome Appellant and Emmanuel Mwania 1st Respondent Clement Waituika 2nd Respondent (Being an appeal from the Ruling and Order of Hon. M. Thibaru, RM/Adjudicator dated 27th October 2025 at the Small Claims Court at Machakos in SCCC No. E556 of 2024) Judgment Introduction and Background 1.The 1st Respondent (“Emmanuel”) filed suit against the Appellant(“Christine”) and the 2nd Respondent (“Clement”) in the subordinate court seeking inter alia judgment of Kshs.100,000.00, interest and costs of the suit. Emmanuel states that he entered into an oral agreement with Clement who presented himself as a financial consultant specializing in forex trading and Emmanuel agreed to invest Kshs.100,000.00 with him. That the investment was to be repaid with interest in monthly installments of Kshs.25,000.00 over a period of 12 months and following Clement’s instructions, Emmanuel transferred the Kshs.100,000.00 to Christine’s cell phone number. 2.Emmanuel claims that Clement failed to make any payments after two months and when he inquired, Clement cited tax problems and later began ignoring his calls and texts hence the suit. Christine failed to enter appearance and file a defence and consequently an ex-parte judgement was entered against her on 9th January 2025 on the request of Emmanuel. Upon Emmanuel initiating execution proceedings, Christine filed an application seeking to set aside the judgement and all consequential orders alleging that the judgement was irregular on the basis that service had not been properly effected. Emmanuel opposed the application and the subordinate court rendered a ruling on 27th October 2025 holding that the service was proper and regular. The learned Adjudicator noted the certificate of service and the M-Pesa confirmation which proved that the number served belonged to Christine. 3.The subordinate court considered Christine’s argument that the phone number was exclusively used by her son, Clement but found this explanation to be "very wanting" and stated that allowing such an excuse would enable people to defeat justice. As such, the subordinate court concluded that the service was proper, making it a regular default judgment. The subordinate court then stated that it had perused the draft defence and found that it did not raise any triable issues but consisted of mere denials and that Christine had failed to show any other sufficient ground upon which the judgment should be set aside. The application was thus dismissed with costs of Kshs.2,000.00 being awarded to Emmanuel. 4.Christine is dissatisfied with this decision by the subordinate court and now appeals to the court through her memorandum of appeal dated 6th November 2025. She avers that the trial court erred in law by holding that service of the Claim via WhatsApp on a mobile phone number registered to her but not in her possession, constituted proper and effective service. That the trial court erred by failing to properly apply the principles for setting aside ex-parte judgments as the court failed to find that a judgment obtained without effective personal service is an irregular judgment which must be set aside as a matter of ex debito justitiae, rather than a matter of discretion. 5.Christine contends that the trial court erred in law by shifting the burden of proof onto her to disprove service and yet the legal burden to prove valid service rested squarely with Emmanuel, that the learned Adjudicator erred by making a finding that her explanation for non-service was "wanting" without any evidential basis to contradict her sworn affidavit that the phone was exclusively used by her son. Further, that the learned Adjudicator failed to appreciate that the trial court's overriding objective is to facilitate the just and expeditious resolution of disputes and this objective is best served by allowing a party to be heard on the merits of their defence. 6.Christine states that the trial court’s decision was, in all circumstances, plainly wrong, unjust and based on erroneous legal principles, thereby occasioning a miscarriage of justice and she prays that the court allows the appeal, sets aside the Ruling of the learned Adjudicator and substitutes it with an order allowing her application which sought to set aside the ex-parte judgment and be allowed to defend the suit. She also seeks costs of this appeal. 7.The appeal has been canvassed by way of written submissions which I have considered together with the record and I will make relevant references to them in my analysis and determination below. Analysis and Determination 8.In determining this appeal, I am aware that the court’s jurisdiction is limited by section 38(1) of the Small Claims Court Act which provides that ‘A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.’ A court limited to matters of law is not permitted to substitute the Subordinate Court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them (Mati v Returning Officer Mwingi North Constituency & 2 others [2018] KECA 700 (KLR)]. Thus, the duty of this court is to determine whether the subordinate court’s ruling was supported by the evidence on record and the law. 9.What the trial court was called to determine was whether the judgment entered was regular and whether it ought to have been set aside. Order 10 rule 11 of the Civil Procedure Rules empowers the court to set aside or vary such judgment and any consequential decree or order upon terms that are just. This power is discretionary and is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice (See Mbogo & Another v Shah [1967] EA 116 and Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] KECA 282 (KLR)] 10.The Court of Appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) held as follows in respect of regular and irregular judgments:…From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. 11.Emmanuel stated that service of the pleadings were effected through Christine’s number 074****751 duly registered in her name. The parties agree that Order 5 Rule 22C of the Civil Procedure Rules allows service by mobile-enabled messaging platforms such as WhatsApp as follows:22C.Mobile-enabled messaging Applications [Order 5, rule 22C](1)Summons may be sent by mobile-enabled messaging Applications to the defendant's last known and used telephone number.(2)Summons shall be deemed served on the day which it is sent; if it is sent within the official business hours on a business day in the jurisdiction sent, or and if it is sent outside of the business hours and on a day that is not a business day it shall be considered to have been served on the business day subsequent.(3)Service shall be deemed to have been effected when mobile-enabled messaging services when the Sender receives a delivery receipt.(4)An officer of the court who is duly authorized to effect service shall file an Affidavit of Service attaching the delivery receipt confirming service. 12.Christine admitted that the number where service was effected is registered in her name but she swore in her deposition that it was exclusively used by her son, Clement. I am in agreement with Christine that Order 5 Rule 22C(1) of the Civil Procedure Rules does not merely require service on a number registered to a person but it specifically requires service on the defendant's "last known and used telephone number". As she has submitted, registration is an administrative formality with a telecom provider whereas usage is a question of fact. Christine provided sworn, uncontroverted affidavit evidence that she did not own, possess, or use the phone. Indeed, the burden shifted to Emmanuel to demonstrate otherwise but he provided no evidence to rebut this such as call records, message logs or proof that Christine ever responded from that number. 13.By conflating "registration" with "usage," the trial court erred in law and since Christine's evidence was not controverted, then the service was defective. A judgment founded on defective service is an irregular judgment and should have been set aside as a matter of right, without any inquiry into the merits of her defence or the delay. The trial court's finding that Christine's explanation was "wanting" effectively placed the burden on her to disprove service which was a legal misdirection. As correctly cited in Christine’s submissions, section 107 of the Evidence Act places the burden of proof on the party who asserts a fact and Emmanuel bore the legal burden to prove, on a balance of probabilities, that service was valid. His evidence was an Affidavit of Service from a process server and an M-Pesa transaction confirming the number was registered to Christine. Christine's evidence was a sworn affidavit stating the number was used by her son and that she never received the documents. 14.When there is a genuine factual dispute on service, the court cannot simply prefer the process server's version without analysis. The trial court was required to weigh the competing evidence but instead, it dismissed Christine's explanation as "wanting" without requiring Emmanuel to provide further proof for example, that Christine was the one who read the WhatsApp messages, or call records showing her usage of the number. The Adjudicator held that "If people were to be allowed to hide behind such kind of excuses, they would misuse it on daily basis to defeat justice." While this is a valid concern for a trial court, it does not, by itself, amount to evidence. The court cannot dismiss a sworn affidavit on the mere suspicion that such an excuse could be misused as the court's role is to evaluate the evidence before it. 15.The Appellant's explanation is not inherently improbable as it is entirely common for a parent to register a phone number in their name for a child or family member and in the absence of any evidence to contradict her story, the trial court could not simply dismiss it as "wanting" without any factual basis. This was a perverse finding and an error of law. 16.Even if I were to assume, arguendo, that the judgment was regular, the exercise of discretion would still favour setting it aside as I find that the trial court failed to properly consider the established principles of whether Christine’s defence raised triable issues. Going through the defence, I find that it is not a mere denial as found by the subordinate court but it raises a fundamental and substantive issue: lack of privity of contract. She claims that she was never a party to any agreement with Emmanuel and that the transaction was between Clement and Emmanuel. In my view, this is an issue that goes to the heart of the claim and deserves to be tested at trial because as was held in Tree Shade Motors Limited v D.T. Dobie And Company (K) Limited & Another [1998] KECA 40 (KLR), even a single triable issue is sufficient to grant leave to defend. 17.It is also my finding that Christine did not delay in filing the application as it was filed immediately after learning of the suit on 22nd August 2025 when execution commenced. Indeed, one cannot delay in responding to a case they are unaware of. I further find that the prejudice to Emmanuel of a delay in executing the judgment is compensable by an award of costs. However, the prejudice to Chrstine is irreparable and fundamental as she will be condemned to pay a debt she claims she never incurred, without ever having her day in court. I agree with her submission that as per sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution, the court's primary objective is to do substantive justice. The overriding objective is best served by allowing a party to be heard on the merits of their defence, especially where the defence is not frivolous and the failure to appear was not deliberate. Conclusion and Disposition 18.In the upshot, I find and hold that the trial court erred in dismissing the application dated 1st September 2025 hence the appeal succeeds and is allowed and I make orders thus:1.The Ruling delivered on 27th October 2025 in SCCCOMM No. E556 of 2024 is quashed and set aside2.The ex-parte Judgment thereof of the trial court dated 9th January 2025 and all subsequent orders thereto be and are hereby set aside.3.The suit is hereby remitted back to the Small Claims Court, Machakos for hearing and determination on merit on priority basis.4.The error having been occasioned by the trial court, each party to bear their own costs of this appeal and at the subordinate court. DATED SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF SEPTEMBER 2026............................................................................J W W MONGAREJUDGEIn the presence of;N/A for the AppellantN/A for the RespondentAbdisalan- Court Assistant