https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12640

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **CIVIL APPEAL NUMBER E034 OF 2023** **JULIUS NJUGUNA MACHIRA ...................................1ST APPELLANT** **MOSES NDIRITU NDIRANGU ................................ 2ND APPELLANT** **VERSUS** **ALICE WANJIRU MICHA (Suing for and on behalf of the estate of** **BRIAN NGARI MICHA (Deceased) ............................ RESPONDENT** *(Being an appeal against the ruling delivered by Hon. Susan N. Mwangi on 31st May 2023 in Chief Magistrates Court Murang’a in case number MCCC.NO.E037 of 2022)* **JUDGMENT** 1. The Appellants herein were the Defendants in Murang’a CMCC No. E037 of 2022, where the Respondent, suing as the legal representative of the estate of Brian Ngari Micha (Deceased), obtained an interlocutory judgment on or about 31st May 2022. This was followed by a decree and certificate of costs dated 15th November 2022. 2. Aggrieved by the said judgment, the Appellants moved the trial court by way of a Notice of Motion dated 14th December 2022, seeking to stay execution and set aside the default judgment to allow them to defend the suit on merit. By a ruling delivered on 31st May 2023, the trial Magistrate dismissed the application with costs to the Respondent, a determination that has triggered this appeal 3. In the Memorandum of Appeal dated 5th June 2023, the Appellants has listed the following grounds: 1. *That the learned Magistrate erred in law and in fact in holding that the Appellants were served with summons to enter appearance and accompanying pleadings which was not the case.* 2. *That the learned Magistrate erred in law and in fact in making a presumption that the failure to cross-examine the court process server was a proof that service of summons had been affected on the Appellants.* 3. *That the learned Magistrate erred in law and in fact in failing to find that the alleged court process server did not deny the Appellants' claim they were not served with the summons to enter appearance and pleadings and instead relied on evidence by a third party.* 4. *That the learned Magistrate erred in law and in fact in relying on unsubstantiated evidence on alleged existence of other suits by the Respondent against the Appellants despite the averments made by the 1st Appellant in his supplementary affidavit.* 5. *That the learned Magistrate erred in law and in fact in failing to find that the draft statement of defence raised triable issues.* 6. *That the learned Magistrate erred in law and in fact in purporting to make on the grounds raised in the draft statement of defence in an interlocutory application.* 7. *That the learned Magistrate erred in law and in fact in ignoring the pleadings, evidence and submissions by the Appellants and giving more weight to the pleadings, evidence and submissions by the Respondent.* 8. *That the learned Magistrate erred in law and in fact in making the determination on the application dated 14th December 2022 with a fixed mind.* 4. The Appeal was canvassed by way of written submissions. **Appellants’ Submissions** 1. It is the Appellants’ submission that the default judgment was irregular as there was no proper service of summons. They aver that they only became aware of the suit on 9th December 2022 when auctioneers visited their premises. They challenge the affidavit of service sworn by Simon G. Kamau, arguing it was insufficient and failed to comply with **Order 5 Rule 3(a)** of the **Civil Procedure Rules,** in that it failed to specify the nature of the business of the 1st Appellant or provide evidence that the 1st Appellant had instructions to receive service on behalf of the 2nd Appellant. 2. The Appellants further submit that the trial court erred by holding that their failure to cross-examine the process server amounted to an admission of service. They contend that their draft statement of defence raised significant triable issues, including the commencement of the suit by a non-suited plaintiff and the involvement of a minor, riding a motor cycle. 3. The Appellants further submit that the trial court erred by holding that their failure to cross-examine the process server constituted an admission of service. They contend that an irregular judgment must be set aside as a matter of right, and in support of their position, they relied on several past decisions, which the court has considered. **Respondent’s Submissions** 1. The Respondent, in opposition to the Appeal submits that the Appellants were duly served on 12th April 2022 but failed to enter appearance or file a defence within the prescribed time. It is argued that the claim was for a liquidated sum, and once the interlocutory judgment was entered, it became final. The Respondent maintains that the Appellants were only awoken from their slumber by the execution process and that the trial court properly exercised its discretion in dismissing the application to set aside the judgment. 2. The Respondent contend that this case was part of Murang’a CMCC No. E221 of 2021 which involved same parties, where service was effected concurrently, a fact they claim the Appellants did not deny. **Analysis and determination** 1. This being a first appeal, this Court is under a duty to reconsider the evidence, evaluate it, and draw its own conclusions. The primary issues for determination are: a). whether the default judgment was regular or irregular and whether the Appellants were duly served. b). Whether the Appellants’s draft defence demonstrated triable issues c) what are the appropriate orders *whether the default judgment was regular or irregular* 1. I have considered the record of appeal, the rival affidavits and submissions plus the Authorities relied on, and the impugned ruling . Since the appeal challenges the exercise of judicial discretion, this Court may interfere only where the court below misdirected itself in law, considered an irrelevant matter, failed to take into account a relevant matter, or reached a plainly wrong conclusion. That is the principle in ***Mbogo & Another v Shah [1968] EA 93.*** 2. The power to set aside a default judgment is found in Order 10 rule 11 of the Civil Procedure Rules, which permits the court to set aside or vary such judgment and any consequential decree or order upon such terms as are just. The discretion is wide, but it must be exercised judicially, with the principal object of doing justice between the parties. 3. The starting point is the distinction between a regular and an irregular default judgment. In ***James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR***, the Court of Appeal held that a regular default judgment is entered after due service, in which event the court considers, among other matters, the explanation for the default, delay, the existence of triable issues, prejudice and the interests of justice. On the other hand, an irregular judgment, entered without service or proper service, takes away the discretion of the court. It is set aside as a matter of right. *Whether the Appellants were duly served* 1. **Order 5 rule 8(1) of the Civil Procedure Rules** requires service upon the defendant in person wherever practicable, unless the defendant has an agent empowered to accept service, in which event service on that agent is sufficient. Where there is more than one defendant, **Order 5 rule 7** requires service upon each defendant, save as otherwise prescribed. 2. Under **Order 5 rule 15**, the serving officer is required to swear an affidavit stating the time and manner of service and the name and address of the person who identified the person served or witnessed delivery or tender of the summons. The affidavit of service is admissible evidence. As the Court of Appeal explained in ***Shadrack Arap Baiywo v Bodi Bach [1987] eKLR***, it ordinarily attracts a rebuttable presumption of service; where service is squarely denied, it is desirable that the process server be called for cross-examination. 3. The learned Magistrate treated the Appellants’ failure to cross-examine the process server as proof of service. With respect, the failure did not constitute an admission and did not relieve the court of its duty to test whether the return of service disclosed compliance with Order 5. Its effect was only that the affidavit remained unshaken by cross-examination and retained its evidential weight. 4. The affidavit of service, as described in the material before the trial court, stated that the process server personally served the 1st Appellant on 12th April 2022. The 1st Appellant denied service but did not seek to cross-examine the process server or place before the court cogent evidence displacing the return. The process server’s failure to describe in detail the nature of the 1st Appellant’s business was not, by itself, fatal where the affidavit stated the place, date, manner of identification and delivery. I therefore find no sufficient basis for disturbing the finding that the 1st Appellant was personally served. 5. The position of the 2nd Appellant is different. The Rules required personal service upon him or service upon an agent shown to have been empowered to accept summons on his behalf. The fact that the 1st Appellant may have received documents intended for the 2nd Appellant, or that both Appellants were connected to the same business or other suits, did not establish such authority. Knowledge of related proceedings is also not a substitute for service of summons in the present suit. 6. The Respondent bore the burden of proving that the 1st Appellant was an authorized agent of the 2nd Appellant for purposes of Order 5 rule 8. No such authority was demonstrated. Consequently, service upon the 2nd Appellant was not proved and the default judgment against him was irregular. It ought to have been set aside as a matter of right. *Whether the draft defence raises triable issues* 1. Even where where judgment is regular the court must go farther to consider whether the proposed defence disclosed a bona fide triable issue. In ***Patel v East Africa Cargo Handling Services Ltd [1974] EA 75,*** the court stated that a defence on the merits does not mean a defence that must succeed; it means a triable issue which raises a prima facie defence and should go to trial. 2. The draft defence contests liability and pleads contributory negligence on the part of the deceased, including the circumstances in which a minor is alleged to have been riding or controlling a motorcycle. Whether the deceased was riding the motorcycle, whether he possessed the legal capacity or competence to do so, how the collision occurred, and whether his conduct contributed to the accident are evidential questions that can only be resolved at a full hearing. 3. The defence also questions the Respondent’s capacity to institute the action on behalf of the deceased’s estate. The merits of that objection will depend upon the pleadings and the grant, if any, relied upon, as well as the statutory basis of each head of claim. It was not open to the court, at an interlocutory stage, to determine that objection conclusively without evidence. Thus, while the Appellants’ defence may not necessarily be a successful defence, it certainly raises triable issues. 4. I also reject the Respondent’s submission that the suit was for a liquidated sum and that interlocutory judgment therefore became final upon entry. A claim for general damages is always an unliquidated claim 5. The Appellants have stated that they learnt of the suit when auctioneers visited their premises on 9th December 2022. They filed the application on 14th December 2022, five days later. The response after discovery of execution was prompt and does not disclose a design to obstruct or delay the proceedings on the part of the Appellants. 6. I am therefore satisfied that the trial court misdirected itself by treating the absence of cross-examination as conclusive proof of service, by failing to distinguish the service position of each Appellant, and by finally evaluating the merits of the draft defence. Those errors justify appellate interference with the exercise of discretion. 7. The appeal consequently succeeds and the following orders hereby issue: a). The ruling and order of the Chief Magistrate’s Court at Murang’a delivered on 31st May 2023 in CMCC No. E037 of 2022 are hereby set aside. b). The interlocutory judgment, the decree and certificate of costs dated 15th November 2022, and all consequential execution proceedings are hereby set aside. c). The Appellants shall file and serve their statement of defence and accompanying documents within fourteen (14) days from the date of delivery of this judgment. d). Each party shall bear its own costs of this appeal. Dated, signed and delivered at Isiolo , via *Microsoft Teams* , this 30th day of July 2026. S. Chirchir Judge. In the presence of: Roba Katelo- Court Assistant. Ms Wanjeri for the Appellants