Wambugu v Kiarie (Civil Appeal E070 of 2023) [2025] KEHC 19835 (KLR) (14 November 2025) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CIVIL APPEAL NO. E070 OF 2023 JOHN MWANGI WAMBUGU………………….. ………………………..APPELLANT -VS- MATHEW CHEGE KIARIE………………………………………. ….RESPONDENT (Being an appeal from the ruling and order of Hon. C. A. Otieno Omondi (SPM) delivered on 13th March 2023 in Ruiru CMCC No. E188 of 2019) JUDGMENT Introduction 1. The Appellant herein, John Mwangi Wambugu filed a Notice of motion application dated 23 January, 2023 seeking the following prayers against the Respondent: a) Spent. b) THAT the Hnourable Court be pleased to order for stay of the decree passed on 20th February, 2020 and all the consequential orders therein pending hearing and determination of this application. c) THAT the Honourable court be pleased to set aside the Judgment entered against the applicant herein. d) THAT the Honourable Court be pleased to grant leave to the Applicant to file defence in the matter. e) THAT the Honourable court be pleased to order cancellation of the warrants of attachment issued to BetaBase Auctioneers and issue an injunction stopping BetaBase Auctioneers from attaching the applicants goods pending hearing of this application and the main suit. JUDGMENT HCCA No.E070 of 2023 Page 1 of 12. f) Costs of the application be in the cause. 2. The application was premised on the grounds on its face and supported by the affidavit of John Mwangi Wambugu of even date. In the said affidavit, the applicant avers that he was not served with court summons and only came to know of the suit on 17 January, 2023 when the Auctioneers went to his house and proclaimed his goods. He was informed that the suit related to Motor vehicle registratuion No. KBN 298K. He deposed that he checked his records and retrieved a sale agreement dated 29 February, 2012 between his agents and Sohan Singh related to the said motor vehicle. He stated that he did not own the motor vehicle when the same was involved in a Road Traffic Accident. 3. Furhter, the Appellant stated that about the year 2016, Maina Samuel Kanyi who had purchased the motor vehicle from Sohan Singh requested him to transfer the motor vehicle directly to him and Maina also showed him a copy of motor vehicle sale agreement between himself and Sohan Singh. He deposed that the Respondent sued the wrong party since he was neither in possession nor was he the registered owner of the said motor vehicle. It is his contention that had the Plainitff served him with court summons, he would have defended the suit accordingly. According to the Appellant, it is imperative that the judgment be set aside, there be a stay of execution and the court pleased to grant him leave to enable him file a defence. 4. The Appellant filed a further affidavit dated 1st February, 2023 sworn by himself in response to the Respondents replying affidavit. He stated that his postal address has always been 4358-00506 Nairobi and not 49838-00100 Nairobi. The log book for Motor Vehcile KBN 295K bears the address 4358-00506 Nairobi and that Vide a letter dated 14th February, 2023, the Postal Corporation JUDGMENT HCCA No.E070 of 2023 Page 2 of 12. confirmed that he is not the owner of the Post office box 49838- 00100 through which its alleged he was served through. 5. He contends that the subject motor vehicle was not insured by him through Monarch Insurance Company Limited, having sold the same in the year 2012. He went on to state by a letter dated 14 th February, 2023, the Mornach Insurance Company limited had denied having been the insurers of the Motor Vehicle KBN 295K as at 25th June, 2016 when the accident occurred. He further contends that the motor vehicle was in possession of Maina Samuel Kanyi in 2019 and was transferred through Tims platform in January 2019. The appellant states that Samuel Kanyi Maina provided cash deposit slip dated 8th November, 2016 for Kshs. 540,000 trasferring the amount to Sohan Sigh, the person he sold the motor vehicle to. 6. Pursuant to court directions, the application was canvassed by way of written submissions. Upon considering the application together with the supporting affidavit, the replying affidavit together with the submissions, the court the court delivered its ruling on 13 March, 2023 whereas the application dated 23rd January, 2023 was dismissed with costs. 7. It is the said ruling and orders issued by the the Trial Court that necessitated the filing of this present appeal. The Appeal 8. Being dissatisfied with the ruling and orders, the Appellant preferred an appeal before this court vide a Memorandum of Appeal dated 14 March, 2023 setting forth the following grounds of appeal; a) That the Learned Trial Magistrate misdirected herself and erred in both Law and fact in dismissing the Appellant’s application and failing to set aside the Ex- parte Interlocutory Judgement entered against him and to issue stay of Execution. JUDGMENT HCCA No.E070 of 2023 Page 3 of 12. b) That the Learned Trial Magistrate misdirected herself and erred in Law and fact in failing to find that the Appellant was not served with Court summons to Enter Appearance as required by Law, and therefore failed to set aside the Ex-parte Interlocutory Judgement which was irregularly entered. c) That the Learned Trial Magistrate erred in law and fact by failing to consider the Appellant’s further Affidavit to proof that the address where the Court Summons were sent to was not the Appellant’s Postal address, hence not proper service and therefore set aside the irregular Ex-parte Interlocutory Judgement as a matter of right. d) That the Learned Trial Magistrate erred in law and fact in failing to find that the Appellant had a prima facie Defence against the Respondent’s Case. e) That the Learned Trial Magistrate erred in Law and fact by refusing the Appellant his constitutional right to be heard by a Court of Law. f) That the Learned Trial Magistrate erred in Law and fact by falling to analyse the application, the supporting affidavit, the further affidavit and the submissions thus making a wrong finding in Law. g) That the Learned Trial Magistrate erred in Law and fact in failing to find that the Judgement entered is quite prejudicial to the appellant being an irregular Judgement. h) That the Learned Trial Magistrate erred in Law and fact in failing to find that the Appellant was not served with a Notice of Judgement. i) That the Learned Trial Magistrate erred in Law and fact in awarding final judgement without formal proof JUDGMENT HCCA No.E070 of 2023 Page 4 of 12. and by failing to cancel the warrants issued and stay of Execution. j) That the Learned Trial Magistrate erred in Law and fact in not following the correct and proper legal principles and thereby arriving at a wrong decision. Pursuant to the Court’s direction The appellant prays for; a) The ruling and the Order of the lower Court made on the 13th day of March, 2023 be set aside. b) There be stay of execution of the Warrants issued. c) The Court be pleased to set aside the default Judgement entered on 19/9/2019 and all other consequential orders and allow the appellant to file his Defence and defend the Suit on merit. d) Cost of this Appeal be awarded to the Appellant. 9. Pursuant to the Court’s directions issued on 13th jnaury, 2024, this appeal was canvassed by way of written submissions. The appellant’s submissions are dated 14 March, 2025 while the Respondent’s submissions are dated 7 April, 2025. Appellant’s Submissions 10. In his submissions, the Appellant is seeking to set aside an interlocutory default Judgment entered against them, citing irregularities in the service of court summons and the judgment process. The Appellant summarized his submissions into the following main issues for determination. 11. On the issue of whether the interlocutory default Judgment was Irregular,the Appellant argued that the Judgment was entered without proper service of summons, as the postal address used belonged to a different entity, known as Semanties African JUDGMENT HCCA No.E070 of 2023 Page 5 of 12. Limited, and not the Appellant. This is supported by a letter from Postal Corporation of Kenya. In law, an irregular Judgment can be set aside as a matter of right if the Defendant shows he/she was not properly served. 12. In regard to the second issue on whether the Appellant was served with court summons, the Appellant submitted that he was not served with summons, rendering the Judgment obtained irregular. He cited Order 5 Rule 17 of the Civil Procedure Rules which allows for substituted service, but the Appellant argues this was not properly done. The affidavit of service relied on by the trial court used an incorrect address, supporting the Appellant’s claim. 13. On whether the defence raises triable issues, it was submitted by the appellant that despite the irregularity, the appellant's defense raises triable issues regarding the ownership of the motor vehicle and negligence. According to the Appellant he had sold the vehicle before the accident, which if confirmed could impact liability. He seeks the court to consider these issues and allow him to defend the suit. 14. Lastly, on whether there will be any prejudice to the Respondent, the Appellant has urged that setting aside the Judgment will not prejudice the respondent, as the appellant is willing to defend the suit on its merits. The goal is to avoid injustice and ensure a fair hearing. 15. The Appellant has relied on the case of Patel vs East Africa Cargo Handling Services (1975) EA 75 to emphasize the court’s discretion in setting aside judgments so as to ensure justice is served. He has further argued that given the irregularities and potential triable issues, the court should set aside the Judgment and allow him to defend the suit. JUDGMENT HCCA No.E070 of 2023 Page 6 of 12. Respondent’s Submissions 16. In his submissions, the Respondent raised six issues for consideration in this appeal. 17. The first issue in whether the court has jurisdiction to determine the appeal since the appellant has failed to comply with the provisions of Order 42 rule 13 (4) of the Civil Procedure Rules, 2010. On this the Respondent has submitted that the appellant failed to comply with Order 42 Rule 13 of the Civil Procedure Rules, 2010, by not including the Respondents Replying Affidavit sworn on 3rd February, 2023 in the Record of Appeal, such as the order or decree appealed from. Such non-compliance may render the appeal fatally defective, was held as seen in the cases of Lucas Otieno Masaye vs Lucia Olewe Kidi (2022) eKLR and Njiriri vs David Mugo (2024) KEHC 7232. 18. The second issue is in regard of whether the Defendant was lawfully and properly served with the relevant pleadings, and summons, and on this, the Respondent submitted that the Respondent served the appellant via registered post after obtaining leave from the court, which is permissible under Order 5 Rule 17 of the Civil Procedure Rules. At paragraph 3 of the affidavit of service dated 29th August, 2019, there is proof that the postal address used to effect service belongs to the Appellant. Additionaly, the Respondent’s investigations report shows the address as the Defendant’s last known address. Therefore, the Appellant’s claim of improper service may not hold, given the Trial’s court satisfaction with the service. 19. The third issue whether the interlocutory Judgment against the defendant was properly entered. According to the Respondent’s submissions that the Judgment was properly entered against the Appellant for failing to enter appearance within the statutory JUDGMENT HCCA No.E070 of 2023 Page 7 of 12. timelines after being served. In the case of Mwala vs Kenya Bureau of Standards (2001) EA 148, the court held that a regular Judgment can only be set aside if the court exercises discretion in favor of the Defendant, subject to payment of costs. 20. Turning to the fourth issue as whether failure to file a defence is fatal to the application to set aside exparte Judgment, the Respondent submitted that the appellant’s failure to provide a plausible explanation for not entering appearance and the lack of a draft defense may hinder their case for setting aside the Judgment unmerited. Courts have held that failure to annex a draft defense is fatal to such applications, as was held in the case of Harun Rashid Khator vs Sudi Hamisi (1994) eKLR. Analysis and Determination 21. Having considered the grounds of appeal, and carefully read through the record of appeal and the rival submissions together with the cited authorities, I find the following are the central issues for determination: a) Whether the interlocutory Judgment entered on 19th September 2019 was regular or irregular? b) Whether the trial court erred in dismissing the application to set aside the interlocutory Judgment? c) Whether the Appellant should be granted leave to defend the suit? 22. On the first issue, the appellant has submitted the he was not served with summons and only became aware of the matter upon arrival of auctioneers in January, 2023. He supports his argument with correspondence from Postal Corporation showing the postal address used for service as P.O Box 49838-00100 Nairobi which he says was not his. He further submitted that his address according JUDGMENT HCCA No.E070 of 2023 Page 8 of 12. to official documents including the Motor vehicle logbook is P.O Box 4358-00506. 23. Substituted service is provided for under Order 5 rule 17 of the Civil Procedure Rules, 2010. It provides as follows; (1) Where the court is satisfied that for any reason the summons cannot be served in accordance with any of the preceding rules of this Order, the court may on application order the summons to be served by affixing a copy thereof in some conspicuous place in the court- house, and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. 24. Vide a letter dated 14th February, 2023 the Posta Kenya confirmed that the Registered Renter for P.O Box 49838-00100 Nairobi belongs to Semantic African Ltd with a date of occupation as 7th October, 2015 and expiry date of 30th October, 2019. 25. It is now well settled that where service of summons is not proper;y effected, the Judgment obtaining is irregular and should be set aside ex debitio justitiae. In the case of James Kanyiita Nderitu & Another vs Marios Philotas Ghikas & Another (2016) KECA 470 (KLR), the Court of Appeal held that: “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 HCCA No.E070 of 2023 Page 9 of 12. Judgment is irregular; it can set aside the default Judgment on its own motion.” 26. In the instant appeal, the Affidavit of Service relied upon by the Respondent referenced an address as the address through which he was served with the pleadings before the high court but which the appellant successfully contested by providing evidence from the Kenya Postal Corporation. This puts a serious doubt on whether service was properly effected upon the Appellant and whether the Judgement so obtained can be considered regular. 27. In regard to the second issue, it is clear from the record that the trial court dismissed the Application based on its satisfaction with the affidavit of service. The court may not have adequately addressed the appellant’s further affidavit, this missed out on the letter from the Postal Corporation which clearly disputed ownership of the address used for service. On perusing the Record of Appeal and Judgment issued find the court’s omission to consider this crucial piece of evidence was a misdirection in law which led to a wrong conclusion. 28. In my humble view, in her ruling delivered on 13 th May, 2023, the trial Magistrate did not analyse an evaluate whether the Judgment was regular or irregular, thereby failing to apply proper legal principles in line with Order 10 rule 11 of the Civil Procedure Rules, 2010. 29. On the issue of exercise of judicial discretion by the trial court, it is this court’s finding that the trial Court dismissed the application largely based on its satisfaction with the Affidavit of Service. However, it did not adequately address the Appellant’s further affidavit and the letter from the Postal Corporation disputing ownership of the address used for service. The court’s omission to consider this crucial rebuttal evidence was a misdirection in law. JUDGMENT HCCA No.E070 of 2023 Page 10 of 12. 30. Having considered the grounds of appeal, submissions, record, and applicable law, this court finds merit in the appeal, in that the trial court erred in law and fact by failing to find that the Judgment was irregular for want of proper service, and further erred by refusing to set aside the same pursuant to the Legal Principles set out under Order 10 Rule 11 of the Civil Procedure Rules and case law in the case of Patel Vrs. East African Cargo Handling Services Ltd (1975)EA75. 31. In the end, this court allows the appeal and orders that; a) The ruling and orders of the trial court delivered on 13th March, 2023 in Ruiru CMCC No. E188 of 2019 are hereby set aside. b) The interlocutory Judgment entered on 19th September 2019, together with all consequential orders, including warrants of attachment, are equally set aside. c) The Appellant is granted leave to file a defence within 14 days from the date of this Judgment. d) The file Ruiru CMCC No. E188 of 2019 shall be remitted back to the trial court for hearing on merit. e) Costs of this appeal shall abide the outcome of the main suit. f) Mention on 11/12/25 for parties to take further directions. It is so ordered. JUDGMENT HCCA No.E070 of 2023 Page 11 of 12. JUDGMENT SIGNED DATED AND DELIVERED AT KIAMBU THIS 14TH DAY OF NOVEMBER, 2025. D. O. CHEPKWONY JUDGE JUDGMENT HCCA No.E070 of 2023 Page 12 of 12.