https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11099

Marangu & another v Wanjiru & 2 others (Civil Suit E11 of 2019) [2026] KEHC 11099 (KLR) (Civ) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11099 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Suit E11 of 2019 JN Mulwa, J July 23, 2026 Between Joseph Kaburu Marangu 1st Plaintiff Caroline Wairimu Kaburu 2nd Plaintiff and George Wanjiru 1st Defendant Ibrahim Waithuku Maina 2nd Defendant Daniel Ng’Ang’A Murithi 3rd Defendant (on motions dated 9/5/2024, 13/5/2024 and 17/1/2025) Ruling Brief background to the motions 1.Before this Court for determination are three notice of motion applications dated 9/5/2024, 13/5/2024 and 17/1/2025 arising from a fatal road traffic accident that occurred on 22/1/2016 involving Motor Vehicle Registration Number KBU 990A (an Isuzu Bus/Coach). 2.The Plaintiffs initiated this action via a Plaint filed in 2019 seeking special and general damages under the Law Reform Act and the Fatal Accidents Act. Court record shows that despite service of the summons to enter appearance and the pleadings, the Defendants failed to enter appearance or present a statement of defence within the prescribed statutory timelines. Consequently, the matter proceeded to a formal proof hearing on 14/7/2022 before Hon. Justice J. K. Sergon. A final judgment and subsequent decree were issued on 23/9/2022 against the Defendants jointly and severally, awarding Kshs. 8,754,154/= in respect of the 1st Plaintiff and Kshs. 1,000,000/= for the 2nd Plaintiff, together with costs and interest at court rates. 3.The Plaintiffs commenced execution proceedings via M/s Mamalo Auctioneers, who proceeded to attach Motor Vehicles Registration Numbers KBW 162T, KCR 923N and KCU 479S on 9/5/2024. This enforcement mechanism precipitated the three contested applications now before this Court for determination. The 2nd and 3rd Defendants’ Case on the Notice of Motion dated 9/5/2024 4.By a Notice of Motion application dated 9/5/2024, the 2nd and 3rd Defendants, through the firm of Kimondo Gachoka & Co. Advocates, approached this Court seeking orders to set aside the default judgment, stay all consequential execution processes, and declare the proclamation and attachment levied on 9/5/2024 illegal and procedurally defective. 5.In their supporting affidavit sworn by the applicants on the even date, it was deposed that upon receiving the court summons and the other court pleadings, they acted in good faith by immediately forwarding the documents to their insurer, Directline Assurance Company Limited, with the legitimate expectation that contractual legal representation would be mounted on their behalf. They further deposed that due to an internal clerical oversight and administrative misfiling at the insurance company, the litigation documents were erroneously cataloged into a "closed claim file," which effectively paralyzed the insurer’s legal department and resulted in the entry of the default judgment. 6.The Applicants averred that they only discovered the existence of the judgment and decree on 9/5/2024 when auctioneers entered their premises under circumstances of extreme duress, forcing them to make an ad-hoc payment of Kshs. 200,000/= to stay the total carting away of their commercial tools of trade. They maintained that they have a meritorious draft Statement of Defence that raises triable issues on liability and the quantum of damages, which warrants the interrogation of the court and determination on merits. 7.In their written submissions dated 24/1/2025, counsel for the 2nd and 3rd Defendants argued that the failure to enter an appearance was neither deliberate, contumacious, nor intended to obstruct the path of justice, but was entirely attributable to a third-party administrative error. Invoking the court's discretionary path under Order 10 Rule 11 of the Civil Procedure Rules, counsel argued that it is a well-settled principle of equity that the procedural mistakes or oversights of an insurance company should not be visited upon an innocent insured party who has otherwise complied with their obligation to report a claim. They further urged that the draft defence is not a mere sham but introduces a substantive challenge to the claim of negligence and the high damages awarded, concluding that the overarching right to a fair trial under Article 50 of the Constitution demands that the doors of justice be opened to enable a balanced ventilation of the dispute. The 1st Defendant’s Case on the Notice of Motion Application dated 13/5/2024 8.The 1st Defendant filed a Notice of Motion application dated 13/5/2024 through the firm of M/s KOD Advocates LLP, seeking post-judgment leave to come on record, an immediate stay of execution, and the unconditional release of the attached motor vehicles. 9.In his supporting affidavit sworn on 13/5/2024, the 1st Defendant deposed that he is the lawful, registered, and absolute owner of Motor Vehicles Registration Numbers KBW 162T and KCR 923N, which are actively engaged in his day-to-day business operations. He explicitly deposed that these attached assets are completely distinct, independent, and separate from the accident vehicle, Registration Number KBU 990A, and that he bears no personal liability that would justify the targeted attachment of his unrelated commercial properties. He asserted that the auctioneer illegally levied execution on assets belonging to an objector without following proper statutory channels, thereby threatening his livelihood and causing him irreversible financial ruin. 10.In the written submissions dated 13/5/2024, M/s KOD Advocates LLP argued extensively that the execution process was structurally flawed and illegal from its inception. Counsel submitted that M/s Mamalo Auctioneers acted in flagrant defiance of the Auctioneers Act and Order 22 of the Civil Procedure Rules by failing to issue or serve a mandatory 7-day Proclamation Notice upon the affected party prior to taking control of the vehicles. 11.These parties urged the court to find that execution can only be lawfully directed against the specific, verifiable property of a judgment debtor directly linked to the operational liability, and that the subversion of procedural safeguards by the auctioneer amounted to a trespass to chattels, which this Court must correct by ordering an immediate release of the vehicles. The 1st Defendant’s Case on the Notice of Motion Application dated 17/1/2025 12.By a curious turn of procedural events, the 1st Defendant, George Wanjiru instructed a separate law firm, M/s KP&M Partners Company Advocates, who filed a separate Notice of Motion application dated 17/1/2025. The Applicant sought an order to arrest all pending objector rulings, set aside the default judgment in its entirety, and strike the 1st Defendant's name from the suit on ground of misjoinder. In his supporting affidavit sworn on 17/1/2025, the 1st Defendant deposed that the default judgment was a procedural nullity because he was never lawfully or properly served with the summons to enter appearance. He tagged the affidavit of service sworn on 21/7/2020 sworn by the process server, Robert K. Mutuku, pointing out that the practicing license attached to it had expired, running only from 2016 to 2019, which rendered the purported service invalid. 13.Further the 1st Defendant annexed a Motor Vehicle Sale Agreement dated 31/5/2015, deposing that he had divested himself of all beneficial and legal interests in motor vehicle registration KBU 990A by selling it to the 3rd Defendant long before the accident occurred on 22/1/2016, making his joinder bad in law. 14.In submissions dated 9/7/2025, M/s KP&M Partners Company Advocates argued that a judgment obtained without regular service of process is an irregular judgment which the court must set aside as a matter of right, ex debito justitiae. Counsel further argued that under Order 1 Rule 10(2) of the Civil Procedure Rules, the court has the power to strike out a party who has been improperly joined. It was contended that since the 1st Defendant was no longer the owner or in possession or in control of the accident vehicle at the material time, no vicarious liability could legally attach to him, and forcing him to remain a party to the suit constituted a grave miscarriage of justice. The Plaintiff’s/Respondents’ Case in Opposition 15.The Plaintiffs opposed the applications by filing a Preliminary Objection dated 26/8/2025 targeted at the third application, dated 17/1/2025 alongside a Replying Affidavit dated 12/7/2024 and a Supplementary Replying Affidavit dated 4/9/2025. Here, the Plaintiffs deposed that the application brought by KP & M Partners was a gross abuse of the court process because the firm had hijacked the representation of the 1st Defendant without filing a Notice of Change of Advocates or obtaining leave of the court as required post-judgment. 16.To counter the allegations of irregular service, they produced the process server's valid 2020 practicing license (Ref No. 7057) issued by the Judiciary, confirming that service was perfectly lawful. They also annexed verified National Transport and Safety Authority (NTSA) official search records, confirming that George Wanjiru remained the officially registered owner of the motor vehicle registration number KBU 990A. Further, the Plaintiffs produced extensive WhatsApp communication logs from September 2020 and April 2024, which proved that the 1st Defendant was personally aware of the suit and the judgment but intentionally chose to ignore them. 17.In their written submissions dated 4/9/2025 and 16/9/2025, the Plaintiffs submitted that the Application by the 1st Defendant dated 17/1/2025 was incompetent and a legal nullity under Order 9 Rule 9 of the Civil Procedure Rules. On the substantive issues, it was argued that the 1st Defendant was guilty of extreme laches, indolence, and a deliberate attempt to evade justice despite having full knowledge of the proceedings. Counsel emphasized that under the Traffic Act (Cap 403), the registered owner of a vehicle bears prima facie vicarious liability to third parties, and private sale agreements cannot be used post-judgment to defeat the statutory rights of innocent accident victims who rely on public registries. 18.Finally, the Plaintiffs urged the court to dismiss the applications and allow execution to proceed. Issues for Determination 19.Having considered the three applications collectively, the parties’ respective affidavits and the rival submissions of counsel, the primary issues crystallize as follows:1.Whether Application dated 17/1/2025 by M/s KP&M Partners on behalf the 1st Defendant is properly before the court.2.Whether the default judgment entered against the 1st, 2nd and 3rd Defendants should be set aside.3.Whether the 1st Defendant is entitled to be struck out of the suit on account of misjoinder.4.Whether the execution and subsequent attachment of property of the Defendants conducted on 9/5/2024 was lawful and or regular. Analysis and Determination Representation & Abuse of Court Process 20.The record shows that M/s KOD Advocates LLP properly came on record for the 1st Defendant post-judgment via a court order upon application. The subsequent filing of an Application by M/s KP&M Partners without filing a Notice of Change of Advocates or obtaining the express leave of the Court is a direct violation of Order 9 Rule 9 of the Civil Procedure Rules. The law governing post-judgment legal representation is absolute; a party cannot change advocates after judgment has been entered without strict compliance with the rules. 21.Moreover, generating parallel, duplicate applications through different law firms seeking identical reliefs is a patent abuse of the court process. The Supreme Court of Kenya in Benjoh Amalgamated Limited v Kenya Commercial Bank Limited [2014] eKLR, rendered that the Court possesses an inherent duty to protect its record from such procedural maneuvers. The application dated 17/1/2025 is therefore incompetent and is hereby struck out in limine. 22.However, to ensure substantial justice, the substantive arguments regarding ownership and misjoinder raised by the 1st Defendant will be analyzed within the context of his validly filed initial application dated 13/5/2024. Setting Aside the Default Judgment 23.The principles governing the setting aside of a regular default judgment under Order 10 Rule 11 of the Civil Procedure Rules. The Court of Appeal in James Kanyita Nderitu & Anor v Marios Philotas Ghika & Anor [2016] eKLR, held that the courts discretion is wide and unfettered, but it must be exercised judicially by examining the reason for the delay, whether the applicant has presented a defence that raises triable issues, and where the balance of prejudice falls. 24.Turning to the 2nd and 3rd Defendants, they have explained that the default was triggered by an administrative breakdown within their insurance company, Directline Assurance Company Limited. The Court of Appeal in CMC Holdings Limited v James Mumo Nzioki [2004] eKLR reaffirmed the settled rule that an administrative oversight, blunder, or slip-up by an advocate or insurer should not automatically be visited upon an innocent litigant to deprive them of their day in court. This principle aligns directly with the constitutional right to a fair hearing under Article 50(1) of the Constitution and the foundation laid in Shah v Mbogo [1967] EA 116, which establishes that judicial discretion to set aside ex-parte default judgments must be exercised to avoid injustice whenever a plausible defense is shown. 25.The court in the above case further rendered that shutting out the insured parties from contesting a multi-million-shilling decree based entirely on their insurer’s misfiling would cause them severe prejudice. 26.In the Defendants draft statement of defense, they deny liability and actively challenge the quantum of damages as awarded. In the court’s eyes, they have successfully exhibited a prima facie triable issue that merits determination in a full trial. 27.In contrast, the 1st Defendant’s claims of irregular service have been disproved by the production of the process server's valid 2020 practicing license. The WhatsApp logs reveal that he had actual knowledge of the suit but willfully chose to ignore it. The Supreme Court in Gaciani & 11 others v Kimanga & another (Application E004 of 2023) [2023] KESC 23 (KLR) (Civ) (21 April 2023) (Ruling) affirmed that litigants bear a continuous duty to follow up on court processes and cannot rely on their own indolence to stall execution. However, because the final judgment was entered against all Defendants jointly and severally, and because this Court has found it necessary to reopen the issue of liability for the 2nd and 3rd Defendants, it would be legally anomalous to leave the decree operating strictly against the 1st Defendant. 28.In the Court's estimation, and to prevent conflicting outcomes, the judgment will be set aside for all parties, but strictly on conditional terms to safeguard the interests of the Plaintiffs. The Question of Misjoinder 29.19. The 1st Defendant's prayer to be struck out under Order 1 Rule 10(2) CPR on the basis of the 2015 private Sale Agreement cannot be resolved at this interlocutory stage. The NTSA statutory copy of records produced by the Plaintiffs prove that George Wanjiru remains the registered legal owner of the vehicle. 30.In Thuranira Karauri v Agnes Ncheche [1997] eKLR (Court of Appeal at Nyeri), the Court of Appeal held that the conflict between beneficial ownership derived from a private sale agreement and legal ownership derived from a statutory registry under Section 8 of the Traffic Act (Cap 403) is a substantive triable issue that must be tested at a full trial through cross-examination, and cannot be determined via conflicting affidavit evidence post-judgment. 31.To that end therefore, the registered owner of a motor vehicle bears prima facie vicarious liability under the Traffic Act, and the 1st Defendant must ventilate his defence during the main trial. The 1st Defendant’s prayer to be removed from these proceedings for misjoinder is therefore denied. Legality of the Execution 32.Under the Auctioneers Act and Order 22 of the Civil Procedure Rules, an auctioneer cannot lawfully execute an attachment without issuing and serving a mandatory 7-day Proclamation Notice upon the Judgment Debtor. The actions of M/s Mamalo Auctioneers in levying an immediate asset seizure on 9/5/2024 and demanding cash payments under duress without proper notice to the judgment Debtors were procedurally irregular, defective and illegal. 33.More fundamentally, once a default judgment is unconditionally set aside by a court order, all subsequent enforcement procedures by way of proclamations and attachments lose their legal substratum and fall by operation of law. Final Disposition 34.Consequent to the above analysis, this Court issues the following orders:-a.The Notice of Motion application dated 17/1/2025 filed by M/s KP&M Partners Company Advocates on behalf of the 1st Defendant George Wanjiru is hereby struck out with costs to the Plaintiffs.b.Applications dated 9/5/2024 and 13/5/2025 seeking orders to set aside the default judgment are allowed on the following conditions that;-1.The 2nd and 3rd Defendants, (Ibrabim Waithuki Maina and Daniel Nganga Muriithi) shall jointly and or severally deposit a sum of Kshs. 2,000,000/= (Kenya Shillings Two Million Only) into a joint interest-earning account in the names of both the Plaintiffs' and Defendants' advocates on record within thirty (30) days from the date of this ruling, to be held as security pending the final determination of the suit.2.In default of the payment of the said security deposit within the specified thirty (30) days, the orders setting aside the judgment shall automatically lapse, and the Plaintiffs shall be at liberty to proceed with execution of the decree.3.Subject to compliance with Order (1) above, the ex-parte judgment and decree dated 23/9/2022 are SET ASIDE, and the Defendants are granted leave to file and serve their Memorandum of Appearance and Statements of Defence within fourteen (15) days from the date hereof.4.The warrants of attachment and proclamations issued and or levied against the Defendants on 9/5/2024 are hereby declared as null and void.5.M/s Mamalo Auctioneers and the Plaintiffs are directed to forthwith, within 4 days (ie on or before COB of 27/07/2026) of this ruling RELEASE and RETURN Motor Vehicles Registration Numbers KBW 162T, KCR 923N, and KCU 479S to the possession of the 1st Defendant, George Wanjiru.6.The sum of Kshs. 200,000/= collected by the Mamalo Auctioneers on 9/5/2024 from the 2nd and 3rd Defendants shall be credited as part of the conditional security deposit mentioned in Order (1) above.7.The costs of the three applications shall abide by the outcome of the suit.Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JULY 2026.……………………….JANET MULWA.JUDGE