https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11089

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. 135 OF 2025** **MOIZ MOTORS LIMITED……………………..……………………..APPELLANT** **VERSUS** **SIMON MUSYOKA KILUU………………………..…………………1ST RESPONDENT** **KYALO KIMATA…………………………………….……………….2ND RESPONDENT** **JUDGMENT** 1. This appeal arises from the Ruling of Hon. James Omburah (SPM) delivered on 26th May 2025 in Machakos CMCC No. 727 of 2014, dismissing the Appellant's application dated 9th August 2024 seeking, *inter alia,* to set aside the judgment entered on 27th September 2017 and to be granted leave to file a defence out of time. 2. Aggrieved by the said ruling, the Appellant lodged the present appeal contending that the learned trial magistrate erred in finding that it had been duly represented throughout the proceedings and in declining to set aside the judgment despite the circumstances presented before the court 3. The Appellant's case is that it was never served with summons to enter appearance and only became aware of the proceedings after judgment had been entered and execution commenced through warrants of attachment. 4. The Appellant contended that the firm of Ojode, Odoto & Onjoro Advocates, which purportedly represented it during the proceedings before the trial court, was never instructed, retained or authorized to act on its behalf. 5. It maintains that no advocate-client relationship existed between itself and the said firm and that any representation by the advocates could not bind it. 6. The Appellant further contended that the trial court erred in concluding that it had participated in the proceedings and had been allowed to be heard. 7. According to the Appellant, the learned trial court failed to interrogate whether the advocates on record had any lawful authority to represent it before attributing their actions to the Appellant. 8. The Appellant further maintained that it has a meritorious defence raising *bona fide* triable issues. 9. It states that Motor Vehicle Registration No. KBV 487H had been sold to the 2nd Respondent pursuant to a Sale Agreement dated 13th June 2013, before the occurrence of the accident giving rise to the suit. 10. It is the Appellant's case that upon payment of the agreed purchase price, possession, control and beneficial ownership of the motor vehicle passed to the 2nd Respondent, while transfer of registration remained pending only because the relevant registration formalities had not been completed. 11. The Appellant further contended that the 2nd Respondent was neither its servant, agent nor employee and that no basis existed for imposing vicarious liability upon it. 12. It maintains that liability, if any, rested with the person who had possession and control of the motor vehicle at the time of the accident. 13. The Appellant therefore contends that the proposed defence raises substantial triable issues relating to ownership of the motor vehicle, liability for the accident, and whether it was properly served and represented in the proceedings. 14. It urges that those issues ought to be determined on their merits. 15. The 1st Respondent opposed the appeal and maintains that the Appellant was duly represented throughout the proceedings before the trial court by the firm of Ojode, Odoto & Onjoro Advocates. 16. The 1st Respondent contended that the said advocates entered appearance, filed pleadings, prosecuted applications, cross-examined witnesses and actively participated in the proceedings on behalf of the Appellant. 17. It is therefore asserted that the Appellant's claim that it never instructed the advocates is an afterthought intended to defeat a valid judgment. 18. The 1st Respondent further averred that the Appellant had previously filed an application dated 8th April 2015 seeking to be struck out of the suit on the same grounds that the motor vehicle had been sold to the 2nd Respondent. 19. That application was dismissed on 3rd February 2016, and the Appellant thereafter continued participating in the proceedings until judgment was delivered. 20. The 1st Respondent contended that the Appellant has failed to demonstrate that the advocates acted without authority and has not produced any evidence showing the absence of instructions or taken any action against the advocates for acting without a retainer. 21. It is further contended that the issue concerning ownership of Motor Vehicle Registration No. KBV 487H had already been determined by the trial court in the ruling delivered on 3rd February 2016 and cannot be re-opened through the proposed defence. 22. The 1st Respondent therefore maintained that the Appellant was aware of the proceedings, participated in them, and is merely seeking a second opportunity to litigate issues that have already been determined. 23. The Appellant submits that the learned trial magistrate erred in dismissing its application dated 9th August 2024 seeking to set aside the judgment entered on 27th September 2017. 24. It submitted that the trial court wrongly concluded that it had been represented throughout the proceedings by the firm of Ojode, Odoto & Onjoro Advocates despite there being no evidence of instructions, retainer or authority authorizing the firm to act on its behalf. 25. The Appellant argued that the learned trial court failed to determine whether a valid advocate-client relationship existed before attributing the conduct of the advocates to the Appellant. 26. The Appellant further submitted that it was never served with summons to enter an appearance and only became aware of the proceedings after execution commenced. 27. It therefore contends that the judgment ought to have been set aside to safeguard its constitutional right to a fair hearing under Article 50 of the Constitution. 28. The Appellant further submitted that its proposed defence raises *bona fide* triable issues. 29. It argues that the suit motor vehicle had been sold to the 2nd Respondent before the accident and that beneficial ownership and possession had passed upon payment of the purchase price. 30. It submits that although it remained the registered owner, registration constitutes only *prima facie* evidence of ownership and that beneficial ownership may rebut the statutory presumption under Section 8 of the Traffic Act. 31. The Appellant further submits that the 2nd Respondent was neither its employee, servant nor agent and that liability should attach to the person who had possession and control of the motor vehicle at the material time. 32. It therefore urges the Court to allow the appeal, set aside the ruling and the consequential judgment, grant leave to file a defence out of time and remit the matter for hearing on the merits. 33. The 1st Respondent submits that the Appellant was duly represented throughout the proceedings before the subordinate court by the firm of Ojode, Odoto & Onjoro Advocates. 34. It is submitted that the advocates entered appearance, filed pleadings, participated in interlocutory applications, cross-examined witnesses and sought adjournments on behalf of the Appellant. 35. The 1st Respondent therefore argues that the Appellant's assertion that it never instructed the advocates is unsupported and intended to defeat the judgment. 36. The 1st Respondent relied on the ruling of Hon. James Omburah delivered on 26th May 2025, wherein the trial court found that the Appellant had actively participated in the proceedings but failed to prosecute its defence before seeking to set aside the judgment more than seven years later. 37. It is further submitted that the Appellant has failed to discharge its burden of proving that the advocates acted without instructions and has not produced any evidence demonstrating the absence of a retainer. 38. The 1st Respondent also submitted that the issue regarding the sale and ownership of Motor Vehicle Registration No. KBV 487H had already been determined in the ruling delivered on 3rd February 2016 dismissing the Appellant's application to be struck out of the suit. 39. It is therefore argued that the issue is *res judicata* and cannot be re-litigated. 40. The 1st Respondent further submitted that the constitutional principles relied upon by the Appellant cannot override the need for finality in litigation and that reopening proceedings concluded several years earlier would occasion prejudice to the successful litigant. 41. The 1st Respondent therefore urges the Court to dismiss the appeal with costs 42. I have considered the record of appeal and the rival written submissions by either party from which I derive that the only issue for determination is whether the trial court exercised its discretion correctly in declining the Appellant’s application seeking to set aside the judgment of the trial court and leave to file its statement of defence out of time. 43. There are two instances in law where a court can set aside its default judgment: one being a regular judgment where a party was served, but for one reason or the other they were unable to participate in the hearing. 44. The other is in instances of irregular judgment; this is where the party was never served, and the case proceeded in their absence. 45. In instances of a regular judgment, the Court exercises a discretionary power to either decline an application for setting aside or to grant it on appropriate terms. 46. On the other hand, in the case of irregular judgments, courts are under an obligation to set aside the judgment as a matter of course; they don’t have discretion on the same. 47. The Court of Appeal in the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) enunciated on the same when it held as follows: *“...We shall first address the ground of appeal that faults the learned judge for setting aside the default judgment and consequential orders in the circumstances of the case. From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file a defence, resulting in default judgment. Such a defendant is entitled, under*Order 10 rule 11*of the*Civil Procedure Rules*, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See*Mbogo & Another v. Shah*(supra),*Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75*,*Chemwolo & Another v. Kubende [1986] KLR 492 *and*CMC Holdings v. Nzioki [2004] 1 KLR 173). *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 is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See*Onyango Oloo v. Attorney General [1986-1989] EA 456).*The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in*Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711: “[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.” *The approach of the courts where an irregular default judgment has been entered is demonstrated the following cases. In*Frigonken Ltd v. Value Pak Food Ltd, HCCC NO. 424 of 2010*, the High Court expressed itself thus:* * + 1. “If there is no proper or any service of summons to enter appearance to the suit, the resulting default judgment is an irregular judgment liable to be set aside by the court ex debito justitiae. Such a judgment is not set a side in the exercise of discretion but as a matter of judicial duty in order to uphold the integrity of the judicial process*.”* *Earlier in*Kabutha v. Mucheru, HCCC No. 82 of 2002 (Nakuru) Musinga, J. (as he then was)*had expressed the principle thus:* * + 1. “[W]ith respect to the trial magistrate, she had no discretion to exercise in the circumstances of the case since there was no service at all and as earlier said, the default judgment had to be set aside as a matter of right. Discretion would have arisen if service was proper and there had been, for example, delay in entering an appearance. Where there is no service of summons to enter appearance, an applicant does not have to show that he has an arguable defence so as to persuade the court to set aside an ex parte judgment. In such circumstances, the court is under a duty to remedy the situation and uphold the integrity of the judicial process. *(See also,*Bouchard International (Services) Ltd v. M’Mwereria [1987] KLR 193, Remco Ltd v. Mistry Jadva Parbat & Co. Ltd. & 2 Others [2002] 1 EA 233 *and* Baiywo v. Bach [1987] KLR 89. 1. What was the case in the instant matter? At pages 32, 33 and 34 of the Appellant’s Record of Appeal are copies of a certificate of posting indicating service of the summons to Moiz Motors Limited by the firm of J.A.Makau Advocates, who were counsel on record for the plaintiff/ 1st Respondent. 2. Order 5 Rule 3 (b) (iv) of the Civil Procedure Rules provides that service on a corporation (like the Appellant) may be effected by sending it by registered post to the last known postal address of the corporation. 3. I believe that should put the matter of service at an end. Still, after the service of the summons and plaint, the firm of Messrs Ojode, Udoto and Onjoro Advocates filed a Memorandum of Appearance dated 2nd April 2015 for Moiz Motors Limited: the Appellant herein. 4. I find and hold that the judgment of the trial court could, in the light of the facts apparent from the Court record, not be set aside ex debito justiciae. That door was shut to the Appellant, once service of the summons and participation by its advocates on record was proved, leaving only the court's discretionary jurisdiction to set it aside. 5. The Court of Appeal in the case celebre of Mbogo & another v Shah (1968) EA 93 at 96, stated that an appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the Judge misdirected himself or acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’ 6. It is therefore clear that for the Appellant to succeed, it must bring itself within the criteria set out in the seminal *dicta* of the Mbogo case. 7. In its Memorandum of Appeal dated 10th June 2025, the Appellant company listed 24 grounds challenging the decision of the trial court in declining to set aside the Ruling of the Court delivered on 26th May 2025. 8. I have independently considered the motion that was dismissed together with the affidavits filed in respect thereto; I have also considered the Ruling of the trial court, and I see no just cause by which I may interfere with the exercise of discretion by the trial court. 9. I say so for the following reasons; 10. The Appellant alleged that the firm of Messrs. Ojode, Udoto and Onjoro Advocates, which acted on its behalf before the trial court, had no instruction to do so as their main ground for setting aside. 11. The Appellant therefore had both the legal and evidential burden to prove that allegation on a balance of probabilities. 12. Section 108 of the Evidence Act provides that the burden of proof in a suit or proceedings lies on the person who would fail if no evidence at all was given on either side. 13. Further, section 112 of the Evidence Act also provides that in civil proceedings the burden of proving or disproving a fact within the special knowledge of a party is upon that party. 14. It was thus incumbent upon the Appellant to adduce proof that it did not instruct the firm of Ojode, Udoto and Onjoro Advocates to act on its behalf in the case before the trial court. 15. One would ordinarily expect the Appellant to adduce evidence of either a complaint against the Advocate to the disciplinary body regulating the legal profession owing to the seriousness of the allegations, or an affidavit from the said firm acknowledging lack of instructions, or a letter to the said firm of advocates demanding explanation on their illegal conduct, but none was adduced before the trial court. 16. Save for a bare averment by the Appellant’s employee, the Appellant offered no evidence at all to prove the allegation that the said firm acted without instructions. 17. On the other hand, there was evidence that the said firm filed a Memorandum of Appearance on behalf of the Appellant. 18. The said firm filed an application dated 8th April seeking the striking out of the Appellant from the suit for the reason that they had sold the vehicle that caused the accident to the co-defendant. 19. Of particular interest is that the supporting affidavit to that application was deponed to by one Nahidh Khan, a director of the Appellant. 20. If the Appellant didn’t instruct the firm of Ojode and others, why would its director be swearing an affidavit to an application drafted and prosecuted by that firm? 21. There was evidence that the firm of Ojode filed an application to recall the plaintiff for cross-examination, which application was allowed and Mr. Ojode did indeed cross-examine the Plaintiff/1st Respondent. 22. Considering all those facts, the trial court can hardly be faulted for not buying the argument that the firm of Ojode and others acted on behalf of the Appellant absent instructions from it. 23. The Appellant faulted the trial court for not considering the merits of its defence, which it alleges contains triable issues. 24. On that issue, I join the trial court in finding that the defence of the motor vehicle having been sold to the co-defendant was litigated and determined in the Appellant’s interlocutory application which was dismissed before the case was set down for the main hearing, and that the available remedy to the Appellant lay in appealing the ruling, not re-litigating the same issue. 25. I find that, that defence was not available to the Appellant under the doctrine of res judicata; consequently the Appellant had no defence that would support the exercise of discretion to set aside the judgment in its favour. 26. The Supreme Court in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) states as follows on *Res Judicata:* *56. The doctrine of “res judicata" is provided for under section 7 of the*[*Civil Procedure Act*](https://kenyalaw.org/akn/ke/act/1924/3)*in that: -No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.”* *58. This court in the case of*[*Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another*](https://kenyalaw.org/akn/ke/judgment/kesc/2016/6) *Motion No 42 of 2014 [2016] eKLR (*[*Muiri Coffee case)*](https://kenyalaw.org/akn/ke/judgment/kesc/2016/6)*held as follows regarding the doctrine of res judicata: 52 Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights.* 1. The Appellant was therefore barred from raising the issue of sale of the motor vehicle before the trial court. 2. The trial court could not be faulted in finding that the proposed defence could not aid the Appellant’s motion for setting aside. 3. Further, once the trial court had pronounced itself on the legal implications of the alleged sale agreement, it could not sit on appeal over its own decision and properly declined the Appellant’s invitation to do so as it was *functus officio*. 4. Elaborating on the same, the Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) stated as follows: *“…We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “*[*The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law*](https://journals.co.za/doi/abs/10.10520/EJC53666)*,” (2005) 122 SALJ 832, has thus explicated this concept:“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”* 1. I find that the correctness or otherwise of a decision cannot be the basis of a court setting aside its own judgment as proposed by the Appellant. 2. The Appellant neither particularized nor adduced any evidence of fraud, lack of instructions, nor non-service of the summons, which were the only justifiable grounds for setting aside judgment in the circumstances of the case. 3. The Appellant has failed to demonstrate any ground that would merit the court’s interference with the manner in which the trial court exercised its discretion to dismiss the appellant’s application dated 9th August 2024 as provided in the Mbogo case. Consequently, I find the appeal not meritorious and order as follows: 1. The Appeal is hereby dismissed 2. The 1st Respondent shall have costs of the Appeal. Dated, signed and delivered virtually via Microsoft Teams at Mombasa this 23rd day of July 2026 **Emmanuel Bitta** **Judge of the High Court** In the presence of: Nechesah C/A Muriithi h/b for Osoro for the Appellant Mutua Makau for the Respondent