https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1244

Munyi v Njiriri & 3 others (Civil Appeal E704 of 2025) [2026] KECA 1244 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1244 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E704 of 2025 AO Muchelule, JA July 3, 2026 Between John Njeru Munyi Applicant and Kellyann Wanjiku Njiriri 1st Respondent James Kariri aka Karira 2nd Respondent House Of General Merchants 3rd Respondent Sadiq Trading Co. Ltd 4th Respondent (Being an application pursuant to Rule 79 of the Court of Appeal Rules, 2022 for order for the dispensation of service of the notice of appeal upon the 1st, 3rd and 4th respondents in an appeal from the judgment of the High Court at Nairobi (S. Mbungi, J.) dated 30th July 2024 in) Ruling 1.By a motion dated 26th November 2025 brought under Rule 79 of the Court of Appeal Rules, 2022, the applicant, John Njeru Munyi, seeks an order dispensing with service of the Notice of Appeal upon the 1st, 3rd and 4th respondents on the ground that they did not participate in the proceedings before the superior court. The applicant contends that although the said respondents were served with summons to enter appearance, they neither entered appearance nor filed any pleadings, resulting in default judgment being entered against them. 2.The application is unopposed. 3.The background to the matter is that the applicant was involved in a road traffic accident on 18th December 2007 along the Nairobi–Nakuru Highway while travelling as a passenger in motor vehicle registration number KAT 955U. The said motor vehicle was owned by the 2nd respondent and was, at the material time, being driven by the 1st respondent. The accident involved another motor vehicle, registration number KAW 823M, owned by the 3rd respondent. As a result of the accident, the applicant sustained injuries. 4.The record reveals some inconsistency regarding the entry of default judgment against the respondents. The trial court indicated that judgment had been entered against the 1st respondent on 20th July 2011 and against the 3rd and 4th respondents on 8th November 2010. However, in its judgment delivered on 30th July 2024, the superior court observed that while the applicant had filed requests for judgment against the 2nd, 3rd and 4th respondents dated 13th October 2010 and against the 1st respondent dated 20th May 2011, the trial court had only entered judgment against the 1st respondent on 19th July 2011. 5.With regard to the remaining respondents, the superior court noted that judgment had only been entered against the 2nd respondent. In respect of the 3rd and 4th respondents, the trial court directed that service be effected in accordance with the rules governing service upon a corporation. The superior court further observed that there was no subsequent record demonstrating compliance with those directions or showing that the applicant had made a further request for interlocutory judgment against the 3rd and 4th respondents. 6.On appeal, the superior court found that the trial court had erred in proceeding on the basis that default judgment had been entered against the 3rd and 4th respondents when there was no record of such judgment and no evidence of proper service upon them. Consequently, the superior court held that the purported judgment against the 3rd and 4th respondents was irregular and incapable of founding liability against them. 7.As regards the 1st respondent, the superior court acknowledged that default judgment had been entered against him. However, it observed that the 1st respondent had been sued as the servant or agent of the 2nd respondent and that the 2nd respondent had not been found vicariously liable for his actions. The court further found that the applicant was an unauthorized passenger in the motor vehicle and had voluntarily assumed the risk associated with boarding it without authority. In those circumstances, the superior court concluded that the 1st respondent owed no duty of care to the applicant. 8.Accordingly, the superior court set aside the award of Kshs.700,000 in damages and dismissed the appeal, finding that the applicant had failed to establish liability on the part of the respondents. 9.The applicant submits that the motion was filed within the seven days prescribed by Rule 79(1) of the Court of Appeal Rules following the filing of the Notice of Appeal on 24th November 2025 pursuant to leave granted by Gatembu Kairu, JA. Counsel contends that the 1st, 3rd and 4th respondents neither entered appearance nor participated in the proceedings before the trial court or the High Court, as evidenced by the High Court judgment which recorded that interlocutory judgment was entered against them. Although they are persons directly affected by the intended appeal, they are also persons who did not take part in the proceedings within the meaning of Rule 79. The applicant therefore urges the Court to dispense with service of the Notice of Appeal upon those respondents and relies on Ahn -vs- Openda (1982) KLR 87–94 in support of that position. 10.I have considered the motion, the submissions, and the record. Rule 79(1) of the Court of Appeal Rules permits the Court, upon application made within seven days of lodging a notice of appeal, to dispense with service on a person who did not participate in the proceedings before the superior court. Pursuant to leave, the Notice of Appeal was lodged on 24th November 2025, and the present motion was filed on 26th November 2025. The application was therefore made within the period prescribed under Rule 79(1). 11.The issue for determination is whether the 1st, 3rd and 4th respondents fall within the ambit of the proviso to Rule 79(1). 12.The record shows that the 1st respondent was served with summons, failed to enter appearance or file a defence, and interlocutory judgment was entered against him. I am therefore satisfied that he was properly before the court but elected not to participate in the proceedings. He consequently falls within the category of persons contemplated under Rule 79(1). 13.The position of the 3rd and 4th respondents is different. The superior court expressly found that there was no evidence of proper service upon them and no valid interlocutory judgment had been entered against them. More importantly, the propriety of service upon, and the consequent liability of, the 3rd and 4th respondents formed part of the issues determined by the superior court and may well arise in the intended appeal. In those circumstances, I am not persuaded that they can properly be treated as persons who merely elected not to participate in the proceedings. To dispense with service would risk excluding parties whose status and liability may themselves be the subject of the intended appeal. 14.I therefore find merit in the application only in respect of the 1st respondent. 15.Accordingly, service of the Notice of Appeal upon the 1st respondent is hereby dispensed with. The prayer for dispensation of service upon the 3rd and 4th respondents is declined. There shall be no order as to costs. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.A.O. MUCHELULE..................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.