https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8874

Master v Langi (Civil Appeal E1433 of 2024) [2026] KEHC 8874 (KLR) (Civ) (10 June 2026) (Judgment) Neutral citation: [2026] KEHC 8874 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1433 of 2024 AN Ongeri, J June 10, 2026 Between Hellen Moraa Master Appellant and James Oyoo Langi Respondent (Being an appeal from the Ruling of Hon. Thomas Nzioki (PM) in Milimani CMCC NO. 318 of 2019 delivered on 20/11/2024) Judgment 1.The cause of action arose from a suit filed by the respondent (James Oyoo Langi) against the appellant (the 3rd defendant, Hellen Moraa Mastar) and others, resulting in an ex-parte judgment entered against the 1st defendant on 29th October 2021, which the appellant sought to set aside. 2.The appellant filed a Notice of Motion dated 10th September 2024, arguing that she was never served with summons, plaint, or notice of judgment, and that execution against her motor vehicle was selective and unlawful. 3.The trial court found that the firm of Maosa & Co. Advocates had not complied with Order 9 Rule 9 of the Civil Procedure Rules, 2010 (no leave obtained to come on record after judgment), rendering the application incompetent. 4.The trial court held that the affidavit of service by Francis Musyoka Nguthu on 22nd January 2020 showed proper service of summons upon the appellant on 29th November 2019, and that the insurer (Invesco Assurance Company Limited) was aware of the matter via notice of entry of judgment dated 27th February 2020. 5.The trial court noted that the judgment against the appellant and the 4th defendant was upheld by the High Court in Nairobi Civil Appeal No. E768 of 2021. 6.The court found no sufficient cause to exercise discretion in the appellant’s favour, stating that litigation must come to an end. 7.The trial court dismissed the application for incompetency and lack of merit, with costs, while granting a 30-day stay of execution by consent of the parties. 8.The appellant has appealed against the said Ruling on the following grounds;i.That the Honourable trial Magistrate erred in Law and fact when he made a finding that there was effective service of the summons upon the appellant, yet there were no sufficient grounds to support the court's finding.ii.That the Honourable trial Magistrate erred in law when during the delivery of his Ruling neglected to give consideration to the fact that in the judgment dated 29-10-2021, there was no finding as to whether liability was either to be joint or several amongst the Defendants in the said suit.iii.That the Honourable trial magistrate erred in law when he made a finding in his Ruling that the appellant (being the 3rd Defendant) at the Subordinate Court had gone on appeal to the High Court, a fact which was not correct.iv.That the Honourable trial Magistrate in his Ruling of 22-11-2024 erred in law and fact when he made a finding that the 3rd Defendant was served on account of the fact that her insurer was all along aware of the matter and yet the said insurer was not a party to the proceedings before the trial Court; and in the circumstances, the alleged awareness of the insurer cannot be proper service, as provided for by Order 5 Civil Procedure Rules, 2010.v.That the said Ruling was delivered on improper grounds, when the trial Magistrate opined that the entry of the initial judgment the subject-matter of the Notice of Motion dated 10-9-2024 was lawful.vi.That the trial Magistrate erred both in law and fact when he failed to make a determination that the Respondent's lawyers had sought Judgment against the Defendants without a plea for liability jointly and/or severally. 9.The parties filed written submissions as follows; 10.The appellant submitted that she is challenging the subordinate court’s ruling of 22nd November 2024, which dismissed her application to set aside an ex-parte judgment entered against her on 29th October 2021. 11.She argues she was never properly served with the summons to enter appearance. 12.The respondent used substituted service by registered post to a single postal address for all four defendants. 13.The respondent did not first demonstrate any attempt at personal service. 14.The affidavit of service is flawed because it purports to serve all defendants collectively. 15.The trial magistrate erred by failing to address the validity of service. 16.Instead, the magistrate based his finding on the fact that her insurer had received notice of entry of judgment. 17.She argues the lower court’s judgment is defective because it did not specify whether liability was joint and several among the defendants. 18.No prayer for joint and several liability was sought in the plaint. 19.Execution against her alone is therefore discriminatory. 20.She has a draft defence raising triable issues, including contributory negligence. 21.The trial magistrate should have considered that draft defence. 22.The subordinate court erroneously stated she had appealed to the High Court, which was incorrect. 23.Her advocates were allegedly not properly on record due to non-compliance with Order 9 Rule 9 of the Civil Procedure Rules—a point raised against her. 24.She seeks to have the subordinate court’s ruling and the ex-parte judgment set aside. 25.She also seeks leave to defend the suit. 26.The respondent opposed the appeal filed by Hellen Moraa Master (the appellant) arising from a ruling delivered on 22nd November 2024 by the trial court in Milimani CMCC No. 318 of 2018. 27.The respondent argues that the trial court correctly dismissed the appellant’s application to set aside judgment, having found that the appellant was duly served with summons to enter appearance through substituted service on 29th November 2019, but wilfully failed to enter appearance. 28.Consequently, interlocutory judgment was entered against the appellant on 10th February 2020, and after a full hearing, final judgment was delivered on 29th October 2021. 29.The respondent emphasizes that the appellant and her insurer were always issued with notices but chose not to appear. 30.The respondent notes that the 1st and 2nd defendants in the primary suit had already appealed the trial court’s judgment in Milimani Appeal No. E768 of 2021, and that appeal was heard and determined by Justice Joe M. Omido on 25th July 2024, with the High Court varying the trial court’s judgment by;i.Entering liability at 100% against the appellant (3rd defendant) and the 4th defendant jointly and severally, andii.Dismissing the suit against the 1st and 2nd defendants. 31.That High Court judgment has never been reviewed, set aside, or appealed. 32.The respondent further points out that the appellant filed a similar application in Milimani Miscellaneous Application No. E1883 of 2024, which was also dismissed. 33.The trial court, in its Ruling, found that;i.The process server’s affidavit demonstrated proper service on 29th November 2019, andii.The appellant’s insurer was aware of the matter as shown by unchallenged service of the notice of entry of judgment. 34.Having found proper service and that the judgment was regular and upheld on appeal, the trial court saw no sufficient cause to set aside the judgment. 35.The respondent submits that the trial court properly exercised its jurisdiction and applied the law correctly, and that the current appeal is an improper attempt to challenge a valid High Court judgment from an appellate court of equal status, which lacks jurisdiction to set aside its own judgment. 36.Therefore, the respondent prays that the appeal be dismissed with costs. 37.The issues for determination in this appeal are as follows;i.Whether the trial court erred in law and fact by finding that the appellant was effectively served with summons to enter appearance.ii.Whether the trial court misdirected itself by relying on the insurer’s awareness of the matter as proof of service upon the appellant.iii.Whether the appellant’s application was properly rendered incompetent under Order 9 Rule 9 of the Civil Procedure Rules.iv.Whether the trial court’s finding that the appellant had appealed to the High Court constituted an error of fact affecting the exercise of its discretion.v.Whether the trial court failed to consider the absence of a prayer for joint and several liability in the plaint, and whether execution against the appellant alone was discriminatory.vi.Whether the appellant’s draft defence disclosed triable issues, including contributory negligence, warranting the setting aside of the ex-parte judgment in the interest of justice.vii.Whether the High Court judgment in Nairobi Civil Appeal No. E768 of 2021 (filed by the 1st and 2nd defendants) bars the appellant, who was not a party to that appeal, from challenging the ex-parte judgment on grounds of non-service. 38.Regarding service of summons, the respondent purported to effect substituted service by registered post to a single postal address for all four defendants. Under Order 5 Rule 17 of the Civil Procedure Rules, 2010, substituted service may only be ordered where the court is satisfied that personal service cannot be effected with due diligence. 39.The record shows no prior attempt at personal service upon the appellant, nor any court order authorizing substituted service against her specifically. 40.The affidavit of service by Francis Musyoka Nguthu dated 22nd January 2020 purported to serve all defendants collectively without distinguishing individual addresses or acknowledgment of receipt by the appellant. 41.Substituted service must be preceded by a demonstrable and diligent attempt at personal service, and a blanket service on multiple defendants at a single address without evidence of individual receipt does not constitute valid service. 42.The trial court therefore erred in finding effective service on the appellant based on the flawed affidavit. 43.The trial court relied heavily on the fact that the appellant’s insurer (Invesco Assurance Company Limited) was aware of the matter via notice of entry of judgment. 44.An insurer is not a party to the suit, and awareness by a non-party cannot cure defective service upon a named defendant. Order 5 Rule 8 requires service to be effected upon the defendant personally or upon a person authorized to accept service on their behalf. 45.There is no evidence that the insurer was authorized by the appellant to accept service of summons. 46.Service upon an agent not expressly authorized by the defendant is not proper service under the Civil Procedure Rules. The trial court’s reliance on the insurer’s knowledge was therefore a misdirection. 47.The trial court dismissed the appellant’s application as incompetent because her advocates, Maosa & Co. Advocates, had not obtained leave under Order 9 Rule 9 of the Civil Procedure Rules to come on record after judgment. 48.However, Order 9 Rule 9 applies where there is a change of advocates after judgment has been entered. In this case, the appellant was never on record in the first place because she was never served. 49.A defendant who has not entered appearance or participated in the proceedings is not bound by the procedural requirement of obtaining leave to come on record after judgment, as there is no previous advocate on record to be displaced. 50.Order 9 Rule 9 is intended to protect the integrity of the record and the rights of a previous advocate, but it does not bar a defendant who was never served and never appeared from subsequently engaging an advocate to set aside a default judgment. 51.The trial court’s finding of incompetency on this ground was therefore erroneous. 52.The respondent did not raise the issue of sub judice or argue that this appeal amounts to an improper collateral attack on the High Court judgment in Nairobi Civil Appeal No. E768 of 2021. 53.That judgment, delivered by Justice Joe M. Omido on 25th July 2024, varied the trial court’s judgment by entering liability at 100% against the appellant and the 4th defendant jointly and severally, while dismissing the suit against the 1st and 2nd defendants. 54.The respondent now contends before this Court that the High Court judgment is final and binding, and that this appeal seeks to challenge a judgment of a court of concurrent jurisdiction. 55.However, the respondent’s failure to raise sub judice or res judicata as a preliminary objection is significant. 56.Section 6 of the Civil Procedure Act bars a court from proceeding with a suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. 57.Here, the appellant was not a party to Nairobi Civil Appeal No. E768 of 2021. That appeal was filed by the 1st and 2nd defendants only. 58.The appellant was not a party to that appeal, and the High Court’s finding of joint and several liability against her was made without her participation or hearing. 59.A judgment entered against a non-party to the appeal cannot bind that party. 60.A person who is not a party to proceedings cannot be bound by the outcome of those proceedings, as it would violate the constitutional right to a fair hearing under Article 50(1) of the Constitution. 61.The High Court’s judgment in Appeal No. E768 of 2021, while persuasive, does not preclude the appellant from challenging the original ex-parte judgment on grounds of non-service, because she was never accorded an opportunity to be heard in either the trial court or that appeal. 62.The trial court’s finding that the appellant had appealed to the High Court was factually incorrect, as the appellant herself had not filed any appeal. 63.The trial court appears to have confused the appellant with the 1st and 2nd defendants. This error, while not determinative alone, indicates that the court did not carefully consider the appellant’s individual position separate from the other defendants. 64.The appellant has a draft defence raising triable issues including contributory negligence, and the interests of justice require that she be given an opportunity to defend the suit on its merits. 65.As the Court of Appeal stated in Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the court’s discretion to set aside an ex-parte judgment is intended to avoid injustice or hardship resulting from an accident, inadvertence, or excusable mistake or error, and should not be withheld where the defendant has a reasonable defence. 66.The appeal is accordingly allowed. 67.The trial court’s ruling of 22nd November 2024 dismissing the appellant’s application to set aside the ex-parte judgment entered on 29th October 2021 is hereby set aside. 68.Consequently, the ex-parte judgment and all consequential orders against the appellant in Milimani CMCC No. 318 of 2018 are set aside, and the appellant is granted leave to file her defence within thirty (30) days from the date hereof, with costs of the application before the trial court and of this appeal awarded to the appellant. 69.Orders to issue accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JUNE, 2026.ASENATH ONGERIJUDGEDelivered in the absence of the parties.