https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8872

JG v FAK (Civil Appeal E046 of 2024) [2026] KEHC 8872 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8872 (KLR) Republic of Kenya In the High Court at Kitui Civil Appeal E046 of 2024 LW Gitari, J June 18, 2026 Between JG Appellant and FAK Respondent Judgment 1.The appellant was the respondent in the Magistrate’s Court. The respondent herein obtained an interlocutory Judgment dated 7th June 2019 after the appellant failed to enter appearance in Mutomo Divorce Case No 5 of 2018. 2.In the said case, the petitioner, who is the respondent herein, prayed for a dissolution of his marriage against the appellant. In his petition, he stated that they got married under the Christian Marriage Act in 1998 and stayed together till 2008. Within their union, they were blessed with two children, namely EM and CK. That on or about 2008, while residing in the United States, the appellant herein left their matrimonial home and later got married to another man. He contended that all his efforts to salvage the marriage had been futile and prayed for the same to be dissolved. 3.After being duly served and failing to file a defence within the stipulated period, the Court entered an interlocutory Judgement against the appellant dissolving the marriage. 4.The appellant filed a Notice of Motion dated 9th April, 2024, seeking that the said judgment and all consequential orders be set aside. On the said application, she contended that she was not served with the Petition, hence the ex parte judgment was irregular. 5.The petitioner/respondent therein opposed the application, stating that the appellant was duly served and that the application was an afterthought actuated by malice, being that she approached the Court six (60) years after the decree absolute was granted. 6.In the ruling dated 6th June 2024, the court dismissed the application seeking to set aside the ex parte judgment, stating that the delay in filing the application was indeed unreasonable. The Court noted that in the cross-petition filed by the appellant herein, she stated that the marriage had broken down irretrievably. Further, that other issues introduced in the cross petition, such as access to matrimonial property, custody and maintenance, can be settled in a separate suit. The Appeal 7.The appellant listed the following grounds in the Memorandum of Appeal:a.That the trial magistrate erred in law and fact in failing to evaluate and analyze the evidence by the appellant that she was not served with summons to enter appearance as cogent and important in making her decision.b.That the learned Honourable Magistrate erred in law and fact in failing to access the overwhelming evidence that there was no affidavit of service in the court record.c.That learned trial Honourable Magistrate misdirected herself on the law and facts when she relied on a contradictory averment of the respondent, which evidence did not counter the appellant's application, hence arriving at an unjust decision and finding.d.The learned trial Honourable Magistrate erred in law and misdirected her on the facts when she disregarded the overwhelming evidence of the appellant that service of the court process of the cause was flawed and not done in accordance with the law.e.The learned trials Honourable Magistrate erred in law and fact in deviating from the factual evidence tendered by the appellant and heavily relied on the respondent's evidence in making her finding, thus arriving at an unjust and unfair decision.f.The learned Honourable Magistrate failed to analyze and consider the fact that the appellant was not aware of the divorce cause.g.The learned Honourable Magistrate erred in law and fact by failing to hold that the filed application ought to have featured in the main hearing of the cause.h.The learned trial Magistrate erred in law and fact when she misdirected himself by taking into consideration extraneous and antecedent matters not before the court, hence arriving at an unjust and wrong decision.i.That the learned Magistrate erred in law and in fact by dismissing the appellant's application, raising her reasoning on the response to the petitioner without giving her an opportunity to be heard. Appellant’s Submissions 8.The appellant submits that the trial Court did not satisfy itself whether there was an affidavit of service or not, but proceeded to hear the matter and delivered a judgment denying the appellant the right to be heard. 9.The appellant contends that the trial court, by failing to accord her the right to defend herself, demonstrated open bias. Further, the Court failed to exercise its discretion credibly in determining the application to set aside the judgment. Respondent’s Submissions 10.The respondent submits that the trial Court’s finding was premised on the fact that the appellant did not raise any triable issues in her petition and cross-petition. This is considering the fact that the parties have been separated for more than 10 years. That the appellant’s own response to the petition and cross petition contains admissions that the marriage has irretrievably broken down and accuses the respondent of fornication/adultery. 11.The respondent further contends that for the appellant to obtain the relief sought by reopening the divorce proceedings, must put forward an arguable case that the marriage had not broken down which she failed to demonstrate. That allowing the matter to be re-opened would therefore achieve nothing other than prolongation of litigation and duplication of evidence. Analysis and Determination 12.I have considered the foregoing, the submissions filed on behalf of the parties herein and the authorities relied upon in support thereof. 13.This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. The Court in the case of Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123 held as follows:“..this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular,, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 14.In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:-“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 15.In my view, the issue that arises for determination is whether the ex parte judgment ought to be set aside. 16.The principles applicable in determining whether to set aside an ex parte judgment were laid out by the Court of Appeal in the case of Pithon Waweru Maina v Thuka Mugiria [1983]eKLR as follows:“a)Firstly, 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 wide discretion given it by the rules. Patel v EA Cargo Handling Services Ltd [1974] EA 75 at 76C and Eb).Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. Shah v Mbogo [1967]EA 116at 123B, Shabir Din v Ram Parkash Anand (1955) 22 EACA 48.c).Thirdly the 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. Mbogo v Shah [1968]EA 93.” 17.As demonstrated by the principles above, this Court has the discretion to vary the said Judgement. In doing so, its main concern should be to do justice to the parties involved. 18.This matter emanates from a petition by the respondent, which sought to dissolve his marriage to the appellant. The respondent in his petition cited dissertion and cruelty. 19.I have perused the record in the present case and it illustrates that the application was filed by the respondent on 19th December 2018. The default judgment was issued on 7th January, 2019. Failure to serve pleadings: 20.Failure by a party to serve pleadings within the prescribed timelines has fatal consequences to the petition. Such pleadings lapse and the Court may strike them out on its own motion. The Court lacks Jurisdiction to deal with a matter which requires that a party be served and there is no proof of service of the pleadings. 21.In the application before the learned Magistrate, the issue that was critical was whether the appellant was served with the Petition. From the proceedings before the learned Magistrate, there is nothing to show that the appellant was served. There was no affidavit of service on record to prove that the appellant was served. The respondent submitted that he had misplaced the affidavit of service. However, I have perused the Court record and I did not come across any affidavit of service in the record of Appeal. For these reasons, I find that there was no service of the petition as required under the law. 22.The appellant was in the U.S.A at the time the Petition proceeded for hearing. Nothing was laid before the learned Magistrate to prove that the appellant was served. 23.The burden was on the respondent to prove that the appellant was served. Section 107 of the Evidence Act provides that he who alleges must prove. The appellant was denied a chance to defend the petition as she was not served. The proceedings were null and void for want of service, which denied the appellant her right to fair trial as he was denied an opportunity to be heard. 24.Article 159 of the Constitution provides that Justice should be done to all irrespective of status and matters before the Court should be determined on merits and not on procedural technicalities. 25.The learned Magistrate erred by stating that the marriage had irretrievably broken down without having the evidence heard and tested. Article 50(1) of the Constitution gives a party a right his/her matter to be heard in an impartial and independent tribunal. The appellant was not accorded that opportunity. 26.For these reasons, I find that the appellant has made her case to have the Judgement set aside and she be given an opportunity to be heard. Disposition: 27.The appeal has merit and is allowed. The ruling of the learned Magistrate dated 6-6-2024 is set aside. It is substituted with an order allowing the application dated 9-4-2024 and;1.Setting aside the judgement dated 7-6-2019 and all consequential orders.2.The matter is referred back to the Lower Court for hearing and determination of the Divorce Petition on Merit.3.Costs to the appellant. DATED AT KITUI THIS 18th DAY OF JUNE, 2026L. GITARIJUDGE