https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8873

Flawless Empire Ltd v Atieno (Civil Appeal E956 of 2025) [2026] KEHC 8873 (KLR) (Civ) (10 June 2026) (Judgment) Neutral citation: [2026] KEHC 8873 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E956 of 2025 AN Ongeri, J June 10, 2026 Between Flawless Empire Limited Appellant and Agnes Atieno Respondent (Being an appeal from the Ruling of Hon. Mary Njagi (SPM) in Milimani CMCC NO. E4457 of 2023 delivered on 1/9/2025) Judgment 1.The respondent, Agnes Atieno, filed a civil suit in the Milimani Commercial Magistrate Court against multiple defendants, including the appellant, Flawless Empire Limited, who was listed as the second defendant. 2.In that primary suit, the respondent successfully obtained an ex parte default judgment against the appellant on December 20, 2024, after the appellant failed to enter an appearance or file a statement of defence within the required timeline. 3.Following this judgment, execution proceedings commenced, resulting in the attachment of the appellant’s motor vehicles, registration numbers KDL 005W and KDM 003J, by auctioneers. 4.Aggrieved by these actions, the appellant moved the court via a Notice of Motion seeking to set aside the default judgment and all consequential execution orders, to be granted leave to file an appearance and defence out of time, or alternatively, to have the court review its judgment. 5.The appellant contended that it was never properly served with the court summons and only became aware of the suit on April 24, 2025, when its vehicles were attached. It argued that service via email was insufficient and irregular because the email used was not its official address and that service on a company must physically be served upon its directors or officers. 6.Furthermore, the appellant asserted that it had a defence raising triable issues. 7.In response, the respondent and the auctioneers opposed the application, presenting evidence from a court process server, Cosmas Osawa, who deponed that service had been legally and properly effected through an electronic email address obtained from the appellant's official CR12 company registration document. 8.Upon evaluating the arguments, the trial court first dealt with the regularity of the judgment, noting that under Order 5 Rule 22B of the Civil Procedure Rules, electronic mail service to an address listed on a company’s CR12 is recognized as valid and complete. 9.The appellant failed to prove that the email address was fraudulent or unassociated with its registry, the court found that the appellant had been duly and properly served, rendering the default judgment entirely regular. 10.In analyzing whether to exercise its discretion to set aside a regular judgment, the court noted that the appellant filed its application on April 25, 2025, introducing an unreasonable and unaccounted-for delay of several months since the December 2024 judgment. 11.The court also observed that the appellant failed to annex a draft defence to its application to substantiate its claim of having triable issues, meaning the respondent would suffer undue prejudice if the regular judgment were disturbed without merit. 12.Consequently, trial court declined the appellant's primary prayer to set aside the ex parte judgment and rejected the alternative prayer for a review, thereby explicitly maintaining the validity of the judgment against the appellant and denying them leave to file a defence out of time. 13.However, the application was not a total loss for the appellant, as the court separately considered the legality of the execution process itself. 14.The court observed that under the prevailing rules, a proper Notice of Entry of Judgment must be served upon a regular default debtor before execution by attachment or eviction can legally begin. 15.There was no proof on the record that the respondent had served this mandatory Notice of Entry of Judgment on the appellant prior to assigning the auctioneers and the court declared the ongoing execution proceedings and the resulting attachment process strictly irregular. 16.To remedy this specific procedural failure, the court ordered that the execution proceedings be vacated in their entirety and directed that the attached motor vehicles, KDL 005W and KDM 003J, be immediately released back to the appellant. 17.The trial court ultimately ruled that execution could only commence afresh once the respondent strictly complied with the law by properly serving the appellant with the Notice of Entry of Judgment. 18.The application was a split outcome where both sides partially succeeded and the respondent retained her judgment but the appellant successfully reversed the vehicle seizure. 19.The trial court ordered each party to bear its own costs of the application. 20.The appellant has appealed against the said ruling on the following grounds;i.That the Magistrate erred in law and fact by dismissing the application and denying the appellant a right to be heard, contrary to natural justice.ii.That the Magistrate erred and misapprehended the legal principles regarding the setting aside of interlocutory judgments.iii.That the Magistrate erred by failing to appreciate cardinal principles of law before arriving at her decision.iv.That the Magistrate erred by finding no triable issues, despite the appellant’s affidavit demonstrating a defense that raised them.v.That the Magistrate failed to exercise her judicial discretion properly, resulting in an erroneous decision.vi.That the Magistrate erred in holding that the judgment was partially fulfilled, whereas the appellant had paid no money toward the decree.vii.That the Magistrate erred by failing to realize that the email address used to serve the summons was not being used by the appellant at the time.viii.That the Magistrate misdirected herself in law and fact in dismissing the appellant's application. 21.The parties filed written submissions as follows; The appellant, Flawless Empire Limited, submitted that the lower court erred in dismissing its application to set aside an ex parte interlocutory judgment. 22.The appellant contends that the learned magistrate wrongly held that service via an email address (which the appellant had indicated was not in use) was proper, and also wrongly held that there was no defence despite a draft defence having been filed. 23.Citing several authorities, the appellant stated in the submissions state that in Shuma - vs- Ochunie (JR) E009/22 (2025) 439 KLR and in Branco Arable - vs- Bank of Uganda 1999 2 EA 22, the court held that the administration of justice normally requires that disputes be investigated and decided on their merits, and that errors or lapses should not necessarily debar a litigant from pursuing their rights unless the lack of adherence to rules renders the appeal process inoperative. 24.The submissions also cited Mureith Charles & Another - vs- Jacob Atina Nyagesuka (2022) KECH 1805 KLR for the proposition that an excusable mistake should not consign an affected party to oblivion, and that the court must consider all surrounding circumstances before shutting the doors of justice upon a litigant. 25.Further, the appellant relies on Philip Keipto Chemwolo & Another - vs- Augustine Kubende 1982-88 IKAR 103, where the court held that precluding a party from entering appearance due to a four‑week delay would be an extreme and unjust penalty. 26.Finally, the appellant quoted Cropper -vs- Smith (1884, Bowen L.J.) for the principle that the object of the court is to decide the rights of the parties, not to punish them for mistakes made in the conduct of their cases, unless the mistake is fraudulent or intended to overreach the court. 27.On this basis, the appellant urges the court to allow the appeal and grant it an opportunity to be heard on its defence. 28.The Respondent on her part submitted that the appeal, which seeks to set aside a judgment entered against it, is without merit. 29.The Respondent contends that the trial magistrate correctly found that the Appellant was properly served with the court pleadings. 30.Service was effected via the Appellant’s official email address, info@flawlessempireltd.com, which was obtained from its own CR12 registration document and therefore confirmed to be its last confirmed and used email address. 31.This method complied fully with Order 5 Rule 22B of the Civil Procedure Rules, requiring a delivery receipt and a sworn affidavit of service, both of which were satisfied. 32.The Respondent further submitted that the Appellant had no physical office, making email service appropriate, and that the Appellant never questioned the veracity of the process server’s affidavit. 33.Citing the principle from M B Automobile v Kampala Bus Service, [1966] EA the Respondent emphasizes there is a qualified presumption in favour of the process server’s report, and the burden lies on the party denying service to prove the return is incorrect, a burden the Appellant failed to discharge. 34.Further, the Respondent asserts that the Appellant failed to provide any draft defence with its application to set aside the judgment. 35.Without a draft defence, the trial court could not possibly assess whether there existed a bona fide triable issue or a meritorious defence. 36.Referring to the Court of Appeal decision in Kingsway Tyres & Automart Ltd v Rafiki Enterprises Ltd [1996] eKLR , the Respondent argues that it is fatal to an application for setting aside a regular judgment if no draft defence is attached for scrutiny. 37.The Appellant’s bare claim of having a triable defence is insufficient. 38.Finally, the Respondent points out that after the judgment was entered, the Appellant itself filed an application seeking to pay the decretal sum in instalments, which the court considered and granted on terms. 39.Only after that order was made did the Appellant decide to file the present appeal. This conduct, the Respondent submits, shows misrepresentation of facts and bad faith. 40.Consequently, the Respondent prays that the appeal be dismissed, as the trial court’s ruling was correct on both service and the lack of a draft defence, and the Appellant is undeserving of the discretionary orders it seeks. 41.The issues for determination in this appeal are as follows;i.Whether the trial court erred in finding that the default judgment entered against the Appellant was regular;ii.Whether the trial court properly exercised its discretion in refusing to set aside the default judgment andiii.Whether the Appellant demonstrated a defence that raises triable issues. 42.After careful reconsideration and re-evaluation of the record, this court finds that while the trial court correctly analyzed the regularity of the judgment, it is an established principle of law that the court's discretion to set aside a default judgment, even a regular one, is unfettered and is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable error, rather than to punish a party for procedural mistakes. 43.The Court of Appeal in Philip Kiptoo Chemwolo & Another v Augustine Kubende (supra), a case cited by the Appellant, firmly held that the court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in light of all facts and circumstances, and that precluding a party from entering appearance due to a delay, even of several weeks, would be an extreme and unjust penalty. 44.The Appellant became aware of the suit only on April 24, 2025, when its vehicles were attached, and filed the application to set aside the judgment on April 25, 2025. 45.This action was taken with immediate dispatch upon gaining knowledge of the proceedings, demonstrating that the Appellant was not deliberately seeking to obstruct or delay the course of justice. 46.Furthermore, the trial court placed significant weight on the Appellant’s failure to annex a draft defence to its application, concluding that this omission meant there were no triable issues. 47.While attaching a draft defence is a sound practice, it is not an absolute statutory requirement, and the court has the discretion to consider the averments in the supporting affidavit to discern whether a triable issue exists. 48.The Appellant, in its affidavit, asserted that it had a defence on the merits. A triable issue is not one that must ultimately succeed, but rather any issue that raises a prima facie defence and requires further interrogation by the court during a full trial. 49.The matter revolves around a commercial dispute where the Appellant was allegedly denied the opportunity to challenge the Respondent's claim and the interest of justice strongly militates in favour of allowing the matter to be heard on its merits rather than disposing of it on a technicality. 50.No party should be chased away from the seat of justice unheard, even if their claim does not succeed, and no one should be condemned without a hearing. The right to a fair hearing is a constitutional mandate as enshrined in Article 50 of the Constitution of Kenya. 51.Article 50(1) explicitly states that;“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body” 52.The courts have consistently held that this right to a fair hearing is a non-derogable right, meaning it cannot be limited or taken away under any circumstances as per Article 25(c) of the Constitution of Kenya 2010. 53.The trial court’s failure to properly consider this aspect was a misdirection. The Respondent will not suffer any irreparable prejudice that cannot be compensated by an award of costs, whereas the Appellant stands to suffer the substantial prejudice of being permanently shut out from prosecuting its defence. 54.Accordingly, the appeal is hereby allowed. The ruling of the Milimani Commercial Magistrate Court delivered on the application is set aside. 55.Consequently, the ex parte default judgment entered on December 20, 2024, and all consequential orders flowing therefrom, are hereby set aside. 56.The Appellant is granted leave to file its memorandum of appearance and statement of defence within fourteen (14) days of the date of this ruling. 57.To compensate the Respondent for the delay, the Appellant shall pay to the Respondent throw-away costs assessed at Kshs. 30,000/- before the case is heard denovo, failing which the orders setting aside the judgment shall automatically lapse and the Respondent shall be at liberty to proceed with execution. 58.Each party shall bear its own costs of this appeal. 59.Orders to issue accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JUNE, 2026.ASENATH ONGERIJUDGEDelivered in the presence of:-Mr. Mukonji for the RespondentNo appearance by the AppellantCourt Assistant - Crispin