https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8144

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** ***[Coram: David Mburu, J.]*** **HCCSCA NO. E180 OF 2025** ***-between-*** **DUSHYANT N. PATEL…..…...……………………………….…………APPELLANT** ***-versus-*** **ROBERT MUDECHE ALUOMA………………………………….1ST RESPONDENT** **NICHOLAS KIMATHI……………………………………………..2ND RESPONDENT** ***(Being an appeal from the Ruling of Hon. Kiongo Kagenyo (Adjudicator) in Nairobi [Milimani] Small Claims Court Civil Case No. E4906 of 2023 delivered on 25th July 2025)*** **JUDGMENT** 1. In a ruling delivered on the 25th July 2025, the Small Claims Court, in *Nairobi [Milimani Small Claims Court Civil Case No. E4906 of 2023]* dismissed the appellant’s Notice of Motion application dated 9th September 2024 which sought to set aside an exparte judgment. **Appellant’s Case** 1. Aggrieved by the said ruling, the Appellant lodged a Memorandum of Appeal dated 11th August 2025 seeking to set aside the impugned ruling on the following grounds: - 2. *That the Honourable Adjudicator erred in law and in fact in dismissing the appellant’s application to set aside the interlocutory judgment despite the appellant demonstrating that he had not been served with the statement of claim and accompanying documents.* 3. *That the Honourable Adjudicator erred in law and in fact in relying on the service of a demand letter to infer that the appellant was duly served with court process, yet a demand letter does not amount to or substitute proper service of pleadings as required under the Civil Procedure Rules.* 4. *That the learned trial magistrate failed to appreciate that interlocutory judgment obtained without proper service of summons and statement of claim is irregular and ought to be set aside ex debito justiciae.* 5. *That the learned trial magistrate failed to consider that the right to be heard is a fundamental principle of natural justice, and that denying the appellant an opportunity to defend the suit on the basis of non-service amounted to a denial of a fair hearing.* 6. *The learned trial magistrate erred in law in failing to exercise his discretion judiciously and in the interest of justice, by placing undue emphasis on service of the demand letter while ignoring the failure to serve pleadings.* 7. *The learned trial magistrate erred by shifting the burden of proof to the appellant to show that he was not served, contrary to the legal principle that the burden lies with the respondent to demonstrate proper service of summons.* 8. The Appellant urged his case further through written submissions dated 21st November 2025 and his supplementary submissions dated 6th March 2026. The main issue raised by the appellant is the issue of service of summons to enter appearance. The appellant maintains that he never received the summons to enter appearance, allegedly served via email to **dushyant@wanachi.com*.*** 9. The appellant takes issue with the trial court’s finding that he was properly served with summons to enter appearance on the basis that the process server’s certificate of service dated 11th October 2023 yet the process server did not avail the email delivery report as evidence that the email had been successfully delivered to the appellant. The appellant contended that the trial court’s finding that there was proper service was erroneous in view of the provisions of Order 5 Rule 22B(2) of the Civil Procedure (Amendment) Rules 2020 which provides as follows: ***“Service shall be deemed to have been effected when the sender receives a delivery receipt.”*** 1. The appellant further submitted that the law places the burden of proof upon the respondent to prove service upon the appellant but that in the impugned ruling, the trial court shifted this burden to the respondent. It was submitted on behalf of the appellant that the said finding is contrary to the established rules of evidence hence an error in law. 2. In conclusion, the Appellant argued that since there was no evidence of service of summons to enter appearance, then the trial Court ought to have instead struck out allowed the application. To that end, he sought the appeal be allowed with costs. **Respondent’s Case:** 1. The 2nd respondentopposed the appeal through written submissions dated 29th January 2026. It is the 2nd respondent’s case that the appellant was properly served with the pleadings and summons to enter appearance and was aware of the suit. To that end, the 2nd respondent that the appellant never disputed that the email address which was used for service belonged to him. 2. The Respondent further submitted that the Appellant never established that he had an arguable appeal and to this end, he cited the case of Kiu & Another v Khaemba & 3 Others (Civil Appeal (Application) E270 of 2021) [2021] KECA 318 (KLR) (17 December 2021) (Ruling). 3. The 2nd Respondent further submitted that the appeal raised issues of fact in clear contravention of section 38(1) of the Small Claims Court Act. 4. Based on the foregoing submissions, the 2nd Respondent prayed that the appeal be dismissed with costs. **Analysis and Determination** 1. The sole issue for determination in this appeal is whether the trial Court correctly disallowed the application after finding that there had been proper service upon the appellant. The jurisdiction of this Court on an appeal from the Small Claims Court is spelt out in *Section 38(1)* of the *Small Claims Court Act* to be only on matters of law and that such an appeal is final. Since the appeal herein seeks to interrogate the manner in which the Court exercised its discretion in rejecting the application, the issue comprises of a matter of law and as such this Court has the requisite jurisdiction over this appeal. 2. The disputed service was done electronically via email and therefore falls within the ambit of Order 5 Rule 22B(2) of the Civil Procedure (Amendment) Rules 2020 which provides thus: ***“Service shall be deemed to have been effected when the sender receives a delivery receipt.”*** 1. It is clear beyond per adventure that where service is by email, the law requires that the process server exhibit a delivery receipt. Without such a receipt, there would be no way for the court to discern whether the email was actually delivered to the addressee. In this case, it matters not that the appellant did not disown the email address that was used to send the documents. In fact, the email address may well have belonged to him, but it was incumbent upon the respondent to prove that the email was actually delivered to the appellant. This would only have been achieved by filing evidence of the delivery receipt, which the process server failed to do. 2. Even after the appellant denied receipt of the summons, the respondent did not deem it necessary to avail the delivery receipt if indeed any existed. The only reasonable conclusion to be drawn from this is that none existed. 3. I have further considered the contention by the respondent that the appellant did acknowledge receipt of some documents sent via email. Unfortunately, there was no acknowledgement of the summons to enter appearance and hence this argument does not aid the respondent’s case. 4. Flowing from the foregoing, I do hereby find and hold that the trial court erred in its finding that the appellant had been properly served yet there was no evidence of delivery of the email as envisaged under Order 5 Rule 22B(2) of the Civil Procedure Rules. **Disposition:** 1. In the end, the following final orders hereby issue: - 2. ***The appeal is hereby allowed.*** 3. ***The ruling of the Small Claims Court as delivered on the 25th July 2025 is hereby set aside and substituted with an order unconditionally allowing the Appellant’s Notice of Motion application dated 9th September 2024.*** 4. ***That the appellant shall file and serve his response to the claim in the lower court within fourteen (14) days from the date of this ruling and the matter shall be heard on merit before any Judicial Officer other than Hon Kiongo Kagenyo.*** 5. ***The Appellant is hereby awarded the costs of this appeal assessed at Kshs. 20,000/= (Kenya Shillings Twenty Thousand Only).*** **David Mburu** **Judge** **04/06/2026** **Judgment delivered virtually via Microsoft Teams and uploaded to the Case Tracking System (CTS) this 4th day of June 2026.** **In the presence of:** **……………………………………………………………….....**Court Assistant **………………………………………………………………...**for the Appellant ………………………………………………………………for the Respondent