Kanyingi & another v Monyo & another (Suing as the Legal Representatives of the Estate of the Late Isaac Maina Ngugi) (Civil Appeal E049 of 2025) [2026] KEHC 10782 (KLR) (Civ) (16 July 2026) (Judgment)

Kanyingi & another v Monyo & another (Suing as the Legal Representatives of the Estate of the Late Isaac Maina Ngugi) (Civil Appeal E049 of 2025) [2026] KEHC 10782 (KLR) (Civ) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10782 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E049 of 2025 D Mburu, J July 16, 2026 Between Willliam Ng’ang’a Kanyingi 1st Appellant Julia Njeri Kinuthia 2nd Appellant and Zipporah Wanjiru Monyo 1st Respondent Samwel Karwimbo Monyo 2nd Respondent Suing as the Legal Representatives of the Estate of the Late Isaac Maina Ngugi (Being an Appeal from the Ruling of Hon. B.M. Cheloti (PM) delivered on 30{{^th}} September 2024 and Judgment delivered on 13{{^th}} October 2023 in Milimani CMCC No E5985 of 2018) Judgment Introduction 1.This appeal arises from the judgment of the Magistrate’s Court at Milimani (B.M. Cheloti, PM) delivered on 30th September 2024 in Milimani CMCC No. E5985 of 2018. 2.Isaac Maina Ngugi (the deceased) was involved in a fatal accident along Haile Selassie Avenue on 21st November 2016, involving motor vehicle registration number KBH 165V, a matatu owned by the appellants. The respondents blamed the appellants for the said accident. Accordingly, they filed a plaint dated 22nd June 2018 seeking various orders: special damages of KShs.156,350/-, general damages under the Law Reform Act and the Fatal Accidents Act, costs and interests. 3.It would appear that the appellants were served but did not participate in the proceedings and so, the matter proceeded for formal proof. Upon considering the testimonies of the parties and their submissions, the trial court delivered its judgment on 13th October 2023, allowing the respondents’ claim and making the following award: Kshs. 100,000/- for pain and suffering; Kshs. 100,000/- for loss of expectation of life; Kshs. 4,499,200/- for loss of dependency; special damages at Kshs. 1,565,350/-; and costs and interest. 4.Subsequently, the appellants filed an application dated 24th June 2024 seeking various prayers including a temporary injunction against proclamation, a permanent injunction restraining the respondents from selling motor vehicle KBH 165V, the release of the said motor vehicle and orders setting aside the default judgment. 5.By a Ruling delivered on 30th September 2024, the trial court held that the appellants were indeed served with the pleadings in the case and they had failed to give a justifiable cause why they did not participate in the proceedings. With respect to the draft defence attached to the application, the trial court took the position that the same raised triable issues, whether an accident occurred and whether the appellants were culpable for the accident which occurred. However, citing the case of CMC Holdings Ltd. vs Nzioki [2004] KLR 173, the trial court exercised its discretion in favour of the respondents and dismissed the application. However, I note that the said Ruling is incomplete as some pages are evidently missing. The Appeal 6.Dissatisfied with the trial court’s decision, the appellants filed a Memorandum of Appeal dated 15th January 2025 raising various grounds of appeal. They can be summarized as follows, that the Learned Trial Magistrate erred in law and fact:i.In dismissing the appellants’ notice of motion seeking leave to file their defence thereby violating their right to a fair trial.ii.By contradicting herself by finding that the draft defence raised triable issues but dismissing the appellants’ application for leave to file their defence.iii.Failing to find that a notice of entry of judgment was not served upon the appellants as required by Order 22 Rule 6 of the Civil Procedure Rules.iv.By being biased against the appellants. 7.Looking at the Memorandum of Appeal, I note that the appellants are also challenging the Judgment delivered on 13th October 2023. This aspect of the appeal shall be handled later in this Judgment. The Appellants’ Submissions 8.In support of their appeal, the appellant filed their submissions dated 25th November 2025. They submitted that whilst they appended a draft defence raising triable issues as conceded by the trial court, the trial court dismissed their application and reinstated the ex-parte judgment. This, according to the appellants, was an injudicious exercise of the trial court’s discretion for which they urged this Court to interfere with. To support their assertion, they relied on Gupta vs Continental Builders Limited (1978) KLR 83 for the proposition that a party raising triable issues must be given unconditional leave to defend. The Respondent’s Submissions 9.The respondents opposed the appeal vide their submissions dated 9th December 2025. As to whether the trial court erred in failing to vacate the ex-parte judgment, it was their case that the same is an exercise of discretion. Further, they argued, despite denying service, the appellants did not seek to cross-examine the process server. In their view, a return of service is presumptive proof of service as held in Dickson Daniel Karaba vs John Ngata Kariuki & 2 Others [2010] eKLR. In their view, therefore, the trial court rightly declined to set aside the ex-parte judgment. 10.Relatedly, having been served, they contended that the appellants cannot be heard to claim that their right to be heard was violated by the trial court, neither did they establish that the trial court was biased against them. Analysis And Determination 11.As this is a first appeal, it is this court’s duty to analyze and re-assess the evidence on record and reach its own conclusions in the matter. As put more succinctly in Selle v. Associated Motor Boat Co. [1968] EA 123:“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. 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif –vs- Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).” 12.I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein. I find that the appeal raises one issue for consideration: whether the trial court correctly exercised her discretion in dismissing the appellants’ application for leave to defend and effectively reinstating the ex-parte judgment. 13.Setting aside an ex-parte judgment is an exercise of judicial discretion. See Philip Kiptoo Chemwolo and Mumia Sugar Company Ltd. vs Augustine Lembede (1982-1988) KAR. That discretion will not be lightly set aside on appeal. As stated by the Court of Appeal in CMC Holding Limited vs Nzioki (Civil Appeal 329 of 2001) [2004] KECA 143 (KLR):“ 13.….in an application before a court to set aside ex parte judgment, the Court exercise its discretion allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously. On appeal from that decision, the appellate court would not interfere with the exercise of that discretion unless the exercise of the same discretion was wrong in principle or that the Court did act perversely on the facts….” 14.This holding was largely an application of the reasoning in Mbogo & Another vs Shah [1968] EA 98. To determine whether the trial court properly exercised its discretion, it behooves this Court to consider the law with respect to setting aside of an ex-parte judgment. 15.The impugned Judgment in this case was allegedly based on lack of filing a defence by the appellants. In their application, they claimed that they were not served with the necessary pleadings. In its Ruling, the trial court found that the appellants were indeed served but failed to enter appearance and defend the case. I am inclined to agree with the trial court. Looking at the affidavit of service sworn by Stephen Gakonyo, it meets the prerequisites set out in Order 5 Rule 15 of the Civil Procedure Rules, in that it, details who and to whom service was effected; the person who identified and witnessed the delivery of summons; and the time and manner of service. The appellants did not mount a formidable challenge to the same. Accordingly, the ex-parte default judgment was a regular judgment. 16.The second matter for consideration is whether the draft defence raises a triable issue. In the CMC Holding Limited Case, the Court of Appeal held that where a court is faced with an application to set aside a default judgment, it is duty-bound to do so even where the reasons offered are flimsy, but the defence raises even one triable issue. 17.In the instant case, the appellants attached a draft defence to their application. I note from the pleadings, that the impugned Ruling as filed by the appellants is incomplete. I need not rehash the importance of filing complete documents before the Court as this ensures that the Court fully appreciates the nature of the issues raised before it. That said, I note from the impugned Ruling that indeed the trial court found that the draft defence raised triable issues, to wit, whether an accident occurred and whether the appellants were culpable for the same. 18.Having held that the draft defence raised triable issues, the trial court was under an obligation and ought to have allowed the matter to proceed for full trial to allow the parties ventilate the issues. So central is the triability of the defence that the court in Sebei District Administration vs Gasyali and Others (1968) EA 300 held that even where a triable issue has been brought to the court’s attention irregularly, the court must consider it. 19.I find and hold that it would be a miscarriage of justice to deny a party, who has expressed a desire to defend a suit and raised triable issues, an opportunity to do so. In so holding, I am minded that the core duty of this Court is to ensure that justice is done between the parties pursuant to its constitutional duty and Section 3A of the Civil Procedure Act. Accordingly, I allow the appeal with respect to the appeal. 20.Having so held, it would be prejudicial of this Court to consider the appeal against the Judgment as that would amount to a prejudgment of the substantive suit. Orders 21.In the end, I make the following orders:a.The Ruling dated 30th September 2024 is hereby set aside and substituted with an order allowing the appellants’ application dated 24th June 2024 on condition that the appellants pay the respondents throw away costs of Kshs. 10,000/-. In default, this Judgment shall be deemed to have been dismissed.b.The appellants shall also pay the auctioneer’s costs to be agreed or taxed.c.The security of Kshs. 500,000/- shall be released to the appellants.d.Each party shall bear own costs of this appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JULY 2026.DAVID MBURUJUDGEIn the presence of:Mr. Harrison Kinyanjui for the AppellantsMr. Nyambane for the RespondentsKalondu - Court Assistant