https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7246

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEALLATE DIVISION** **CIVIL APPEAL NO. E571 OF 2024** **ELIUS GITONGA KARIUKI…………………………………………..APPELLANT** **VERSUS** **LUCY OBONYO MBOGA…………………………………....1ST RESPONDENT** **OBADIAH KARIUKI KARANJA……………………………..2ND RESPONDENT** *(Being an Appeal from the Ruling of Hon. E.K Too (SRM) in Milimani CMCC No. E4626 of 2020 delivered on 3/5/2024)* **JUDGEMENT** 1. The Appellant ELIUS GITONGA KARIUKI was the 2nd Defendant in Milimani CMCC No. E4626 of 2020 where he was sued by the Respondent LUCY OBONYO. 2. The Trial Court entered into an exparte Judgment on 26/4/2023 against the Appellant. 3. The Appellant made an application dated 28/5/2024 to set aside the exparte judgment. 4. The Trial Court found no evidence to support the application and no evidence to challenge the averments of the process server’s affidavit which affirmed service of summons. 5. The Trial Court also found that the process server was not called for cross examination on the affidavit he served in respect of service. 6. The Trial Court also said that the Appellant was aware of the accident and he ought to have been vigilant. 7. The Trial Court dismissed the application to set aside the exparte Judgment. 8. The Appellant has appealed against the said Ruling on the following grounds; 9. ***THAT the learned Magistrate erred in law and in fact in dismissing the appellant’s application to set aside the irregular judgment entered for the 1st Respondent against the Appellant on 26th April, 2023 in default of appearance based on an irregular affidavit of service dated 11th November, 2022.*** 10. ***THAT the learned Magistrate erred in law and in fact in not considering whether the 1st Respondent was in breach of the Civil Procedure Rules having failed to comply with Order 5 Rule 7 of the said rules.*** 11. ***THAT the learned Magistrate erred in law in failing to find that there was service of summons to enter appearance and notice of entry of judgment upon the Appellant by the 1st Respondent.*** 12. ***THAT the learned Magistrate erred in law in failing to consider that the Appellant has a defence on the merits which raises triable issues on liability as he was not the owner of the subject motor vehicle on 28th August 2017 when the alleged accident occurred.*** 13. ***THAT the learned magistrate erred in law and in fact by rendering a Ruling which is at a great variance with the evidence that was tendered before the Court and indeed the Court reached its determination without regard to the documents submissions and the evidence tendered on behalf of the Appellant.*** 14. ***THAT The learned Magistrate erred in law and in facet in exercising his discretion by misdirecting himself and not considering the claim of the Appellant and considering matters and/or facts which he should not have considered and/or by failing to take into consideration matters and/or facts which he should have to take into consideration and in doing so arriving at a wrong decision.*** 15. ***THAT the learned Magistrate misdirected himself on issue of law and fact and therefore arrived at a wrong finding.*** 16. ***THAT the decision of the learned Magistrate contravened the wight of evidence adduced before the Court.*** 17. The parties filed written submissions as follows; The Appellant, submitted that he is appealing against a ruling delivered on May 3, 2024, which dismissed the Appellant's application to set aside a default judgment and decree entered against him on April 26, 2023. 18. The main issue for determination before the High Court is whether that default judgment was regular or irregular. 19. The Appellant's argument is that the default judgment is entirely irregular because he was never personally served with the summons to enter appearance or any other court pleadings. 20. Instead, the First Respondent, Lucy Obonyo Mboga, irregularly obtained an interlocutory judgment based on a false affidavit of service sworn by process server Daniel M. Maithya. 21. This affidavit indicates that service for the Appellant was mistakenly accepted by the second respondent, Obadiah Kariuki Karanja, who had previously purchased the suit motor vehicle from the Appellant. 22. The Appellant contends that this method of service directly violates Order 5, Rule 7 of the Civil Procedure Rules 2010, which mandates that where there are multiple defendants, service must be made individually on each defendant. 23. To support the position that an irregular judgment must be overturned, the submissions cite extensive jurisprudence, including the Court of Appeal decision in **James Kanyita Nderitu & Another v. Marios Philotas Ghikas & Another.** 24. This precedent establishes that an irregular default judgment entered against a party who was not properly served must be set aside ex debito justitiae (as a matter of right) rather than as a matter of judicial discretion. 25. Under this principle, the court is not required to evaluate the merits of the intended defense or look into any delays, because condemning a party without an opportunity to be heard violates the fundamental tenets of natural justice and the right to a fair trial. 26. Additional High Court authorities, such as **Frigonken Ltd v. Value Pak Food Ltd and Kabutha v. Mucheru,** are cited to reinforce the duty of the court to set aside such judgments to uphold the integrity of the judicial process. 27. Furthermore, the case of **ABC Ltd v. Generation Farmers & Co Ltd** is referenced to emphasize that statutory service rules cannot be bypassed simply because a defendant might have had outside knowledge of a pending suit. 28. The Appellant asserts that the trial magistrate failed to consider these facts and erroneously exercised his discretion in a non-judicial manner when dismissing the application. 29. By ignoring the evidence that the Appellant was completely unaware of the suit and never received any documents through person, post, or digital platforms, the lower court effectively denied him his inalienable right to a hearing. 30. The submissions argue that even under the standard tests for setting aside interlocutory judgments established in James Wanyoike & 2 Others v. CMC Motors Group Ltd & 4 Others, which weigh the merits of a defense, prejudice to the plaintiff, and reasons for delay, the trial court's ruling remains unjust because the Appellant's absence was entirely non-deliberate. 31. The High Court is urged to find merit in the appeal, set aside the ruling alongside all consequential orders, reinstate the main civil suit for a hearing on its merits, and award the costs of the appeal to the Appellant. 32. The 1st Respondent submitted that the trial magistrate was entirely justified in dismissing the application because the Appellant failed to provide any evidence to challenge the process server's affidavit of service. 33. According to the affidavit, the process server met with the 2nd Defendant at Tembo House on November 11, 2022, where the 2nd Defendant acknowledged and accepted service on behalf of the Appellant. 34. The 1st respondent also submitted that because the Appellant never sought to cross-examine the process server, she asserts that the default judgment entered was regular and lawful. 35. Citing established case law, the 1st Respondent emphasizes that the burden of proving non-service rests on the party challenging it, and that a regular judgment should not be set aside unless the applicant establishes a sufficient cause, such as an accident or excusable error. 36. The Appellant failed to demonstrate any such cause and only moved to challenge the court orders upon the proclamation of attachment against his properties. 37. Furthermore, the 1st Respondent contends that the Appellant's intended defense fails to raise any triable issues. 38. While the Appellant claims he was not the owner of the motor vehicle involved in the accident at the material time, his statement of defense neither denies the occurrence of the accident nor attributes negligence to the Plaintiff. 39. He has failed to produce any supporting documentation, such as a sale agreement or transfer forms, to substantiate his claim of non-ownership for the vehicle registration number KBS 304D. In conclusion, the 1st Respondent requests the High Court to uphold the trial court's ruling and dismiss the appeal with costs, allowing the lower court's decree to be enforced. 40. The submissions also annex a separate ruling from the High Court Commercial and Tax Division, **Aden Ibrahim Abdi & another v Ezekiel Angwenyi & another,** to support principles surrounding the regularity of service through an authorized agent. 41. The sole issue for determination in this appeal is whether the default judgment entered against the Appellant on April 26, 2023, was regular or irregular*.* 42. The Appellant argues that the judgment is entirely irregular and must be set aside ex debito justitiae (as a matter of right) because he was never personally served with the summons to enter appearance, which directly violates Order 5, Rule 7 of the Civil Procedure Rules requiring individual service on each defendant. 43. Instead, service was mistakenly accepted on his behalf by the Second Respondent at Tembo House, who had previously purchased the suit motor vehicle from the Appellant. 44. Relying on established jurisprudence like **James Kanyita Nderitu**(supra), the Appellant contends that a judgment obtained without proper service violates the tenets of natural justice and must be overturned without evaluating the merits of the defense or any delays. 45. He asserts that the trial magistrate failed to consider these facts, ignored the lack of personal service, and erroneously exercised his discretion to deny him his fundamental right to a fair trial. 46. Conversely, the First Respondent submits that the trial magistrate was justified in dismissing the application because the Appellant failed to challenge or cross-examine the process server regarding the affidavit of service. 47. The First Respondent argues that the burden of proving non-service rests on the Appellant, who only took action upon the proclamation of attachment against his properties. 48. Furthermore, the First Respondent claims that the Appellant’s intended defence lacks merit because he failed to produce a sale agreement or transfer forms to substantiate his claim that he no longer owned motor vehicle registration number KBS 304D at the time of the accident. 49. Having considered the rival submissions, the trial magistrate erred by failing to appreciate that statutory rules of service are mandatory and cannot be bypassed by an agent accepting service without explicit authorization. 50. Under Order 5, Rule 7 of the Civil Procedure Rules, individual service on multiple defendants is a strict prerequisite for a regular judgment. 51. The Appellant was never personally served; the resulting default judgment is fundamentally irregular. 52. It is an immutable principle of law that an irregular judgment must be set aside as a matter of right to safeguard the right to a fair trial, and outside knowledge of a suit cannot cure a failure to serve. 53. Consequently, the High Court finds substantial merit in the Appellant's arguments, allows the appeal, sets aside the lower court's ruling and all consequential orders, and orders that the main suit be remitted back for full hearing. 54. However, the respondent is awarded thrown-away costs of the suit in the lower court assessed at Kshs. 20,000. 55. The costs of the appeal to abide the cause. 56. Orders to issue accordingly. **Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 25th day of May, 2026.** **………….…………….** 1. **N. ONGERI** **JUDGE** **In the presence of:** No appearance for the Appellant Miss Sigei holding brief for Mr Manyara for the Respondent Ubah – Court Assistant