https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10001

Njau t/a Hexa Systems v Jamii Bora Bank Ltd (Civil Appeal E478 of 2025) [2026] KEHC 10001 (KLR) (Civ) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10001 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E478 of 2025 AC Mrima, J July 9, 2026 Between John Amos Njoroge Njau T/A Hexa Systems Appellant and Jamii Bora Bank Limited Respondent (Being an appeal from the Ruling and Order of Hon. Mary Njagi (SPM) in Chief Magistrates Civil Case No. 8012 of 2016, delivered on 25th March 2025) Judgment Background: 1.The Respondent, Kingdom Bank Limited, formerly, Jamii Bora Bank Limited, instituted suit against John Amos Njoroge Njau t/a Hexa Systems, the Appellant herein, seeking recovery of Kshs. 2,397,801.29. The claim was based on a Local Purchase Order (LPO) Financing Facility of Kshs. 1,700,000/= advanced to the Appellant on or around 22nd September 2014, which subsequently fell into arrears. That was Nairobi [Milimani] Chief Magistrates Civil Case No. 8012 of 2016 [hereinafter referred to as ‘the suit’]. 2.Upon being served with the summons, the Appellant entered an appearance and filed a Statement of Defence dated 4th December 2017. Following an amendment to the Plaint, the Respondent successfully applied for summary judgment against the Appellant, rendered on 7th November 2024. 3.Aggrieved by the entry of the summary judgment, the Appellant filed a Notice of Motion dated 27th November 2024 seeking to set aside the summary judgment. His primary ground was that he was not served with the application seeking the said judgment. On 25th March 2025, the trial Court delivered a ruling dismissing the Appellant’s application. It held that the summary judgment was regularly entered and that the Appellant’s defence was a mere denial that failed to raise any triable issues. 4.The foregoing Ruling provoked the present appeal. The appeal was heard by way of written submissions. The Appeal: 5.The Appellant challenged the ruling of the trial Court through the Memorandum of Appeal dated 24th April 2024. He anchored his appeal on the following grounds: -1.The Honourable Magistrate misdirected herself in finding that the Appellant’s application dated 9th December 2024 was not merited and in proceeding to dismiss it.2.The Learned Magistrate erred and misdirected herself in failing to appreciate that the application by the Appellant in the lower court was seeking to set aside summary judgment on the basis that the proceedings in the lower court had proceeded without proper service to the Appellant.3.The Learned Magistrate erred in law and fact in finding that the Appellant’s defence did not raise triable issues.4.The Honourable Magistrate erred in law and in principle in failing to appreciate that the Defence filed by the Appellant was a layman and in failing to appreciate that the Appellant had denied ever procuring any loan facility from the Respondent.5.The Honourable Magistrate also erred in fact and in principle in failing to consider the Appellant’s grounds for setting aside the judgment which were primarily based on the fact that the Appellant was not served with the Court processes despite him having entered appearance.6.The Honourable Magistrate erred in law and in fact in failing to consider the totality of the evidence before her with regard to service upon the Appellant before determining that service of the Court processes including the application to amend plaint and application seeking summary judgment were proper.7.The Honourable Magistrate misdirected herself in holding that the summary judgment was regularly entered on the misconception that the Appellant was served with the application for summary judgment but declined to respond.8.The Learned Magistrate erred in law and in fact in ruling that the Appellant’s defence was a mere denial and overlooking the fact that the said denial of the existence of the loan was the Appellant’s defence.9.The Honourable Court failed to appreciate that the affidavit of service filed by the Respondent did not show proper service upon the Appellant.10.In view of the circumstances set out herein above, the Honourable Magistrate totally misdirected herself by finding that the Appellant’s application was not merited after failing to consider and appreciate the Appellant supporting affidavit which provided evidence of lack of proper service upon the Appellant. The Submissions: 6.In his written submissions dated 21st October 2025, the Appellant contended that the summary judgment entered on 7th November 2024 was irregular as he was not served with the Court processes. He argued that the email address jwatenga@yahoo.com had been inactive since 2015, and he did not receive any service on his mobile number or his active email, jwatenga@gmail.com. 7.Placing reliance on the case of Aldermen Limited -vs- Shah & 3 others (Civil Appeal E004 of 2021) [2022] KEELC 2311 (KLR), the Appellant submitted that a judgment resulting from a lack of proper service of summons is irregular and liable to be set aside ex debito justitiae to uphold the integrity of the judicial process. 8.On the substantive merits of the defence, the Appellant submitted that his denial of having ever procured the loan facility constitutes a triable issue. He argued that since he was a layman acting in person when drafting the defence, the Court should grant him the opportunity to canvass his evidence at a full hearing. He drew support from the case of Job Kilach -vs- Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR) and Giciem Construction Company -vs- Amalgamated Trade & Services LLR No 103 (CAK), to state that leave to defend must be granted where a defendant shows a fair probability of a bona fide defence. 9.Further, the Appellant referred to the decision in Olympic Escort International Co. Ltd. & 2 Others -vs- Parminder Singh Sandhu & Another [2009] eKLR (Civil Appeal 306 of 2002) to contend that a triable issue need not be one guaranteed to succeed, but merely a bona fide dispute. 10.Lastly, the in the application, Appellant prayed for a stay of execution pending appeal to prevent the appeal from being rendered nugatory. He cited Antoine Ndiaye -vs- African Virtual University [2015] KEHC 6783 (KLR) for the proposition that substantial loss would occur if execution proceeds. The Respondents’ case: 11.Jamii Bora Bank opposed the appeal through written submissions dated 22nd October 2025. It was its case that the Appellant was properly and legally served with the application for summary judgment and hearing notices. It pointed out that three separate affidavits of service were filed on record, affirming service via the Appellant’s acknowledged active email address (jwatenga@gmail.com) on 22nd February 2024, 28th August 2024, and 17th September 2024. 12Relying on the decision in Nairobi Flour Mills Limited -vs- Johnson Kithete t/a Farmers General Stores [2005] eKLR, the Respondent argued that because the Appellant failed to summon and cross-examine the process server, the averments in the affidavits of service remain uncontroverted. 13.The Respondent further asserted that the Appellant deliberately misrepresented facts regarding service to mislead the Court. It cited Fluid & Power Systems Limited -vs- Kalsi [1991] KLR 584, to advance the argument that an applicant who relies on false statements and withholds material facts is not entitled to equitable relief. 10.Regarding the Statement of Defence, the Respondent maintained that it was a sham defence comprising mere denials. The Respondent relied heavily on the Court of Appeal’s holding in Magunga General Stores -vs- Pepco Distributors Ltd [1986-1989] 1 EA 334, submitting that a mere denial is insufficient in a breach of contract claim. It was its case that a defendant must provide specific reasons why they are not liable, such as lack of a contract, failure of performance, or proof of payment. 14.The Respondent noted that under Order 2 Rules 3(1) and 4(1) of the Civil Procedure Rules, a party is obligated to specifically plead the material facts of their defence. It maintained that the trial Court was entirely correct in finding that no triable issue was raised. Analysis and Determination: 15.Flowing from the pleadings and the rival submissions, the main issue that fall for determination is whether the summary judgment was properly entered. In other words, whether the Appellant’s Statement of Defence disclosed any bona fide triable issues to warrant setting aside the summary judgment. 16.This is a first appeal. This Court’s obligation is to evaluate and reconsider all the evidence tendered before the trial Court and make its own independent conclusion. In Selle -vs- Associated Motor Boat Company [1968] E.A. 123 at page 126, the Court discussed this duty 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 witness and should make due allowance in that respect. 17.In dealing with the issue at hand, two sub-issues arise. They are the aspect of service and that of the triable issues. On the first sub-issue regarding service, the Appellant anchored his claim on the assertion that he never received the application for summary judgment, hence the claim that the judgment was irregularly entered. 18.From the evidentiary record, the Respondent filed three affidavits of service sworn by Daniel K. Njoroge on 22nd February 2024, 16th September 2024 and 6th November 2024. They aver that service of the application for summary judgment and the hearing notices thereof were effected via the Appellant’s email address, jwatenga@gmail.com. but the Appellant did not respond. 19.This Court dealt with the issue of service by way of email in High Court of Kenya at Kitale Civil Appeal No. E043 of 2023 B.O.D. County Referral Hospital Kitale & Another vs. Dorcas Naliaka. Since this Court is still of that position, it reiterates what it stated as follows: -23.The Appellants have not denied that their Counsel’s email address is info@yegolaw.com. The contention is that Counsel was not served with hearing notices and to that end they submit that the law was not duly complied with. In this case, the law is Order 5 Rule 22B of the Civil Procedure Rules which states as follows: -22B.Electronic Mail Services (E-mail) [Order 5, rule 22B](1)Summons sent by Electronic Mail Service shall be sent to the defendant's last confirmed and used E-mail address.(2)Service shall be deemed to have been effected when the Sender receives a delivery receipt.(3)Summons shall be deemed served on the day which it is sent; if it is sent within the official business hours on a business day in the jurisdiction sent, or and if it is sent outside of the business hours and on a day that is not a business day it shall be considered to have been served on the business day subsequent.(4)An officer of the court who is duly authorized to effect service shall file an Affidavit of Service attaching the Electronic Mail Service delivery receipt confirming service.24.Order 5 Rule 22B was incorporated into the Civil Procedure Rules 2010 through the Kenya Gazette Supplement No. 11 of 26/2/2020 vide the Civil Procedure (Amendment) Rules, 2020.24.Further, through Gazette Notice No. 3137 of 20/3/2020 the Chief Justice issued the Practice Directions for the Protection of Judges, Judicial Officers, Judiciary Staff, Other Court Users and the general public from risks associated with COVID 19. The Practice Direction No. 5 read as hereunder: -Service of documents and court process: During this period, parties are directed, whenever possible and unless otherwise directed by the court, to serve court documents and processes through electronic mail services and mobile enabled messaging applications as provided for under Order 5 Rules 22B and 22C of the Civil Procedure Rules. 20.The Court went on to say;28.Returning to Order 5 Rule 22B [4] of the Civil Procedure Rules, an Affidavit of Service is supposed to attach an Electronic Mail Service delivery receipt as the confirmation of service. What then is an email delivery receipt? Simply put, an email delivery receipt is a notification confirming that an email message was delivered to the recipient's mailbox. It must, however, be understood that an email delivery receipt is different from an email read receipt. The latter is a notification confirming that the email message was opened and/or read by the recipient.29.In this case, the law calls for only an email delivery receipt. As such, as far as there is evidence that the email was delivered to the recipient’s mailbox, service thereof is confirmed. How then does a sender of an email get a delivery receipt? For one to receive a delivery or read receipt in respect of an email sent to a recipient, the sender must activate the appropriate settings in the email set up. Once the settings are in place, a delivered and/or read receipt, as the case may be, will automatically be received by the sender once the email is delivered and/or read. It is that delivery receipt which the law calls upon a sender to annex to an affidavit of service as evidence of service through electronic mail.29.The Respondent’s Counsel in this case did not, therefore, meet that requirement of law. What was annexed to the affidavit of service was the email as sent the Appellants’ email address and nothing more. There was no evidence confirming that the email was delivered to info@yegolaw.com. Without an email delivery receipt on record, there is no evidence of service and nothing more should turn on such. It is on the basis of the foregoing that this Court finds favour with the Appellants in affirming that there was no evidence that the Appellants were electronically served with a hearing notice for 22nd May 2023.29.With the above finding, this Court finds and hold that the Appellants were not accorded an opportunity to present their case contrary to Article 50(1) of the Constitution. As such, the appeal is merited. 21The above position replicates itself in this matter. Without an email delivery receipt on record, and as so required in law, there is no adequate evidence of service and nothing more should turn on such. This Court finds and hold that the Appellant’s right to be accorded an opportunity to present its case was infringed contrary to Article 50(1) of the Constitution. 22.Having said so, this Court is alive to the finding by the Court of Appeal in Civil Appeal No. 122 of 1986, Shadrack arap Baiywo -vs- Bodi Bach KSM CA [1987] eKLR, where the Court discussed the issue by service by quoting the scholarly works of Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670 where it is observed;…. There is a presumption of service as stated in the process server's report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross-examination given to those who deny the service. 23.Whereas the above is good law, it is distinguishable in this case since it did not deal with the issue of electronic service. Instead, the subject therein was personal service. 24.Next is the sub-issue as to whether the Appellant’s Statement of Defence disclosed bona fide triable issues. The law requires that to set aside a regular default judgment, the Applicant must demonstrate that their defence raises at least one bona fide triable issue. In Job Kilach -vs- Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR) the Court of Appeal referred to its own decision in Postal Corporation of Kenya -vs- Inamdar & 2 Others [2004] 1 KLR 359 where it discussed the subject as hereunder: -…. However, we have accepted that the application that was before the learned Judge was an application for summary judgment under Order XXXV rule 1 and 2. We must now consider whether the principles of law that need to be satisfied before such a judgment is entered were indeed satisfied. The law is now well settled that if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend. 25.The Court went further and defined a triable issue in the following way;10.Before the grant of summary judgment, the court must satisfy itself that there are no triable issues raised by the defendant, either in his statement of defence or in the affidavit in opposition to the application for summary judgment or in any other manner.What then is a defence that raises no bona fide triable issue? A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black’s Law Dictionary defines the term “triable” as, “subject or liable to judicial examination and trial”. It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court.In Gupta v Continental Builders Ltd [1976-80] 1 KLR 809, the court, dealing with an appeal from an award granted on a motion for summary judgment, and in considering the weight to be granted to the defendant’s defence, Madan JA stated that:If a defendant is able to raise a prima facie triable issue he is entitled in law to unconditional leave to defend. On the other hand, if no prima facie triable issue is put forward to the claim of the plaintiff, it is the duty of the Court forthwith to enter summary judgment for it is as much against natural justice to shut out without proper cause a litigant from defending himself as it is to keep a plaintiff out of his dues in a proper case. Prima facie triable issues ought to be allowed to go to trial, just as a sham or bogus defence ought to be rejected peremptorily.11.A triable issue is said to exist if there is a dispute in the facts, which dispute can only be resolved after ventilation in a full hearing. In the case of Giciem Construction Company v. Amalgamated Trade & Services LLR No 103 (CAK) this Court stated:As a general principle, where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, he ought to have leave to defend. Leave to defend must be given unless it is clear that there is no real substantial question to be tried; that there is no dispute as to the facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment. (emphasis added)A bona fide triable issue need not to be one that must succeed. This was stated by this Court in Olympic Escort International Co. Ltd. & 2 Others v. Parminder Singh Sandhu &Another [2009] eKLR (Civil Appeal 306 of 2002) in the following manner:“It is trite that, a triable issue is not necessarily one that the defendant would ultimately succeed on. It need only be bona fide.”12.The onus is the defendant’s to show that there are bona fide issues that ought to be ventilated at full trial. This was stated by this Court in Nairobi Golf Hotels (K) Ltd v Bhimji Sanghani Builders Contractors [1997] eKLR (Civil Appeal Number 5 of 1997) where the Court stated that:“In an application for summary judgment the duty is cast on the defendant to prove that he should be given leave to defend but his duty is limited to showing prima facie the existence of triable issues or an arguable case. 26.This Court has perused the Appellant’s Statement of Defence dated 4th December 2017 at page 34 of the Record of Appeal. The cause of action in this case is premised on an alleged breach of a loan repayment contract. The Appellant appeared in person in the suit and denied liability. Since issues of repayments, applicable interest and reconciliation of accounts will arise, such are serious triable issues more so given the amendments in the Banking Act and emerging jurisprudence on interest rates on loans. At the very minimum, this Court finds that the Appellant filed a holding defence raising triable issues. 27.Having re-evaluated the evidence and the law, this Court, with utmost respect to the trial Court, finds a misdirection or error of principle and law that warrants interference. Disposition: 28In the end, the following final orders hereby issue: -(a)The appeal is hereby allowed.(b)The Ruling delivered on 25th March 2025 in CMCC No. 8012 of 2016in respect to theNotice of Motion dated 27th November 2024 is hereby set-aside in its entirety and is substituted with a finding allowing the said application with costs thereby leading to the hearing of the suit.(c)Given the age of the suit, the hearing shall be expedited.(d)The Respondent shall bear the costs of the appeal.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF JULY, 2026.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Miss Njoroge, Learned Counsel for the Respondent.Miss Mwaura, Learned Counsel for the Appellant.Amina – Court Assistant.