Kiplangat v Tuwei & another (Civil Appeal E256 of 2025) [2026] KEHC 13180 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CIVIL APPEAL NO. E256 OF 2025** **JOHN KIPLANGAT …………………………..…………..…………………. APPELLANT** **=VERSUS=** **JUDITH JEBICHI TUWEI……….………..……………….……….. 1ST RESPONDENT** **JOEL ROTICH ………………..…………………..…………………. 2ND RESPONDENT** *(Being an Appeal Arising from Eldoret SCCCOM No. E1245 of 2025 by Hon. T. M. Mbugua - RM)* **JUDGMENT** **Background** 1. The Claimant filed suit against the Respondent vide a statement of claim dated 1st August 2024 seeking judgment in the sum of Kshs. 850,000 for sums advanced to the 2nd Respondent by the Claimant through her colleague the 1st Respondent which sums remain unpaid necessitating the filing of the instant claim. The Respondent entered appearance denied the Claimant's claim in *toto* and put her to strict proof thereof. In his response dated 24th September 2024, the 2nd Respondent denies knowing the 1st Respondent introducing him to the Claimant. He further denies any involvement in the transaction and avers that he signed any documents as a witness or guarantor. 2. The learned trial Adjudicator considered the issues and ruled as follows: 3. *The Claimant produced WhatsApp messages evidencing conversations between her and the 2nd Respondent, in which the 2nd Respondent appeals to the Claimant to assist the 1st Respondent. She further produced a transaction confirmation evidencing the transfer of Kshs. 850,000 to the 1st Respondent. Although the 2nd Respondent denies knowing or introducing the 1st Respondent, the WhatsApp messages provided by the Claimant clearly show the 2nd Respondent making repeated requests to the Claimant to assist the 1st Respondent. The language used in the chats shows a close association and active facilitation of the transaction. While the Respondent did not sign any document as a guarantor or witness, his representations were material and induced the Claimant to act. On that basis, the Court finds that the 2ndRespondent played an instrumental role that led to the financial loss suffered by the Claimant. The 1st and 2nd Respondents did not appear in court to give evidence in their case and this court finds that the Claimant's evidence remained uncontroverted. In view of the foregoing, this Court finds that Claimant has proved her case against the Respondents in the sum of Kshs. 850,000 which is hereby awarded with disbursements on account of filing. 30 Days stay granted.* 4. The Appellant John Kiplangat was dissatisfied with the decision of the Trial Court basically as alluded to the submissions dated 16th January 2026, he was never given an opportunity to ventilate his defence on the claim by the Claimant Judith Jebichi Tuwei. In seeking to have the judgment of the Trial Court to be set aside without paying the throw away cost this Court dismissed the same in the following language: 5. *Looking at the issue of stay from the perspective of both sides and the legal dimension under Order 42 Rule 6(2) of the Civil Procedure Rules the Application lacks merit in dealing with the question of whether thee success of an appeal will be rendered nugatory if the stay of an execution or proceedings or an injunction is not granted to the Applicant.* 6. *In the event the Applicant feels very strongly that he has to exercise his constitutional rights of appeal in the circumstances of this case he has to deposit the throw-away costs with the Deputy Registrar of the High Court within 30 days from today's date. That further to this order the subject matter of the appeal which seems to be an order of the throw-away costs should be canvassed by way of Written Submission filed simultaneously by both parties on what is legally wrong with the order by the learned trial magistrate. For avoidance of doubt the arguments on the appeal by way of Written Submissions shall take effect after the condition on deposit of Kshs 20,000/=throw-away costs, has been complied with by the Applicant. As a consequence of all this the highlighting of the submissions 16/2/2026.* 7. *It is so ordered* 8. In support of his appeal the Appellant placed reliance on the following authorities; *Gakuha v Embakasi Ranching Co. & 4 Others (2024) KEELC 7208 KLR, Daki Ltd V JTG Enterprises Ltd [2025] KEHC 17113 KLR and Musila v Thengi & 2 Others [2025] KECA 750 KLR*. With that perspective he urged this Court to exercise discretion set aside the judgment of the Trial Court. On the response to the appeal the 1st Respondent filed a relying affidavit dated 11th November 2025 opposing the appeal on the grant of any orders to that effect. **Decision** 1. The question is whether the Appellant has satisfied the criteria to have the judgment of the Trial Court set aside to enable him ventilate and canvass his defence to the monetary dispute. 2. First and foremost, the Courts discretion would be guided by the following principles: 3. *There are no limits or restrictions on the judge's discretion except that if he does vary the judgment he does so on such terms as may be just. The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wise discretion given to it by the Rules. See Patel v EA Cargo Handling Services Ltd [1974] EA 75 at 76.* 4. *The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed toto obstruct or delay the course of justice. See Shah v Mbogo [1967] EA 116 at123B.* 5. *Under Order 9, rule 20, the discretion of the court is perfectly free, and the only question is whether upon the facts of any particular case it should be exercised. In particular, mistake or misunderstanding of the appellant's legal advisers, even though negligent, may be accepted as a proper ground for granting relief, but whether it will be so accepted must depend on the facts of the particular case. It is neither possible nor desirable to indicate in detail the manner in which the discretion should be exercised. See Shabir Din v Ram Parkash Anand 22 EACA 48 at 51.* 6. *A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice. See Mbogo v Shah [1968] EA 93 at 96.* 7. The key principles governing the realm of law of appeal of this nature include inter alia the following based on whether the impugned judgment is regular or irregular. Thus: * *Irregular Judgments: Set aside*ex debito justitiae*(as a matter of right) if the defendant was never served or improperly served with the summons to enter appearance.* * *Regular Judgments: Set aside under the court's unfettered judicial discretion if the applicant shows a reasonable/triable defense, explains the delay/mistake, and demonstrates that no prejudice will be caused that cannot be compensated by costs*. 1. In the Small Claims Court, the mode of service of pleadings is provided for under Rule 35 of the Small Claims Rules thus:- *(1) Service of any document under these Rules shall be made by delivering a copy thereof personally to the party upon whom it is to be served and, where there are more than one party to be served, on each of them.* *(2) Wherever it is practicable, service shall be made on each party in person unless they have an agent authorized to accept service, in which case service on the agent personally shall be sufficient.* *(3) The person served under this rule is required to endorse an acknowledgment of service on the original document: Provided that, if the Court is satisfied that the party or such agent or other person has refused so to endorse, the Court may declare the document to have been duly served, and a Certificate of Service shall be sufficient proof of service.* *(4) Where it is not practicable to effect personal service of a document on a party in accordance with this, rule, service may be effected by mail addressed to the party's last known postal address, and a certificate of posting in that regard shall be attached to the Certificate of Service.* Likewise Proof of Service is provided for under Rule 36 which states as follows: *“Service of a document may be proved by filing in court any or all of the following—* *(a) in the case of personal service, a copy of the document duly endorsed in acknowledgment of service;* *(b) in the case of service by mail, a copy of the document that was mailed, accompanied by a certificate of posting; or* *(c) in the case of service on an agent of the party* *to be served, a copy of the document duly endorsed in acknowledgment of service.* 1. The argument being put forward by the Appellant is that the default judgment was entered against him on 27th June 2025 after the claim proceeded ex parte. He is therefore unhappy that when he filed a motion to challenge the impugned judgment he was condemned to pay costs in a proceeding which he never participated. However, that is now water under the bridge as this Court also affirmed the issue of deposit of thrown away costs which if the appeal succeeds the same would be refunded to the appellant. 2. The principles on this branch of law are now well settled as indicated by the Court of Appeal in the case of *Yooshin Engineering Corporation v Aia Architects Limited (*Civil Appeal E074 of 2022) [2023] KECA 872 (KLR) had this to say on setting aside of a judgment/decree: - *“What comes out clearly is that where the judgement is irregular in the sense that service was not effected, or that the judgement was improperly or prematurely entered, then such a judgement is irregular and must be set aside as a matter of right. It does not matter whether the defendant has a defence or not. The defendant only needs to satisfy the court that the judgement was irregular and that is the end of the matter. The issue of imposing conditions does not arise.”* 1. In addition, in James *Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another ]2016] KECA 470 KLR* held as follows: *“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. See Mbogo & Another v Shah (supra), Patel v E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v Kubende [1986] KLR 492 and CMC Holdings v Nzioki [2004] 1 KLR 173).* *In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”* 1. The core of this appeal is on the right to a fair hearing which is firmly grounded in Article 50 of our Constitution ensuring that disputes involving private rights are resolved impartially and openly. I therefore see the following legal principles as surrounding the determination of this appeal: * *Constitutional Guarantee: Under Article 50(1) of the Constitution of Kenya, every person has the right to have any dispute that can be resolved by law decided in a fair and public hearing before an independent and impartial court or tribunal.* * *Natural Justice: Civil proceedings must respect the twin pillars of natural justice: audi alteram partem (the right to be heard) and the rule against bias (nemo judex in causa sua).* * *Equality of Arms: Both parties must be afforded a reasonable and equal opportunity to present their case, submit evidence, and challenge opposing claims without procedural disadvantage.* 1. The following elements constitute a fair trial markers be either in civil or criminal: 2. *Right to access to a Court* 3. *Right to be heard by a competent, independent and impartial tribunal* 4. *Right to equality of arms* 5. *Right to public hearing* 6. *Right to legal aid where necessarily* 7. *Right to be heard within a reasonable time* 8. The right is more concerned with procedural fairness rather than the substantive decision of the Court. In applying these rights to the facts of this case it appears from the claim that the contract of lending money on the 3rd August 2024 by the 1st Respondent involved both the Appellant and one Joel Rotich. The lender Judith Tuwei from her statement of claim pursuit the repayment of the money but the Appellant and one Joel Rotich failed to settle the debt necessitating filing of the claim before Small Claims Court. It appears very clear from the record that the Appellant John Kiplagat was never heard before the final judgment was issue against him to pay a colossal amount of Kshs 850,000 with costs. 9. I have reviewed the record of the Trial Court and I am of the considered view that Article 50 of the Constitution on fair trial rights should not have been limited by the Learned Adjudicator given the facts of this case there is no evidence of a written contract. It also not very clear from the judgment of the Court on how electronic evidence was admitted given its restrictions under **Section 78A** and **Section 106B of the Evidence Act. In the comparative case of *S v Zuma [1995] ZACC 1* the Court made the following observations:** *“The right to a fair trial . . . embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force. In S v Rudman; S v Mthwana 1992 (1) SA 343 (A), the Appellate Division, while not decrying the importance of fairness in criminal proceedings, held that the function of a court of criminal appeal in South Africa was to enquire— ‘whether there has been an irregularity or illegality, that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial to be initiated or conducted . . . [A court of appeal] does not enquire whether the trial was fair in accordance with “notions of basic fairness and justice”, or with the “ideas underlying the concept of justice which are the basis of all civilized systems of criminal administration”.’* 1. This Court having considered the nature of the proceedings, the nature of the evidence, the probative value of the evidence and any prejudice which may have been occasioned to the Appellant on admission of such evidence moves to exercise judicial discretion in the interest of justice to set aside the exparte judgment demanding of the Appellant to settle a debt of Kshs 850,000 with costs. 2. For those reasons, the impugned judgment be and is hereby set aside and a retrial be held before another learned Adjudicator who shall be identified by the Chief Magistrate of Eldoret Law Court. Thereafter the retrial shall give guidelines and directions to have the Appellant file his defence to the claim and the opportunity to be heard shall comply with the 60 days rule under the Small Claims Court. This prayer of allowing the appeal is still conditioned that the earlier order on throwaway costs be complied with without default pending the hearing and determination of the claim. The costs of this appeal shall abide the outcome of the main claim. Orders accordingly. **DATED, SIGNED AND DELIVERED AT ELDORET THIS 31ST DAY OF AUGUST 2026.** **……………………………………** **R. NYAKUNDI** **JUDGE**