https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11168

Mwangi v Njoroge & another (Civil Appeal E143 of 2024) [2026] KEHC 11168 (KLR) (20 July 2026) (Judgment) Neutral citation: [2026] KEHC 11168 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E143 of 2024 AM Hassan, J July 20, 2026 Between Francis Mboi Mwangi Claimant and Francis Ngaruita Njoroge 1st Respondent Stephen Kimondo Ngaruita 2nd Respondent (Being an Appeal from the Ruling and Orders of Hon. Sylvia Wayodi (RM Adjudicator) delivered in Thika Small Claims Court on 3rd October 2024 and a Ruling dated 20th June 2024) Judgment A. Introduction 1.This Appeal arises from the Ruling and Orders of the Small Claims Court at Thika delivered by Hon. Sylvia Wayodi (Resident Magistrate/Adjudicator) on 3rd October 2024 and a Ruling by the same court dated 20th June 2024. 2.The Claimant (the Appellant herein) instituted a claim before the Small Claims Court against the 1st Respondent herein, who was the 2nd Respondent before the trial court, and one Evelyn Irene Odhiambo. 3.The Claimant's case was that on 2nd May 2023, the 1st Respondent, while driving Motor Vehicle Registration No. KBH 719D, which was registered in the name of and owned by the 2nd Respondent, negligently drove, managed and/or controlled the said motor vehicle in the course of his employment and on behalf of the 2nd Respondent, thereby causing it to collide with the Claimant's Motor Vehicle Registration No. KDG 732K. As a consequence of the collision, the Claimant's motor vehicle sustained extensive damage. The Claimant attributed the accident wholly to the negligence of the 1st Respondent and, vicariously, to the 2nd Respondent as the registered owner of the offending motor vehicle. The Claimant further contended that he incurred substantial repair expenses and suffered loss of income during the period his motor vehicle remained grounded. 4.Following the failure by the Respondents to enter appearance or file a defence, default judgment was entered in favor of the Claimant on 7th December 2023. Subsequently, a decree was issued, and warrants of attachment were issued to Braifus Auctioneers on 15th May 2024 for purposes of execution. 5.By a Notice of Motion dated 15th May 2024, the Objector, Francis Ngaruiya Njoroge, sought the following orders:a.That this Honorable court be pleased to lift and set aside the attachment of Motor Vehicle Registration No. KBH 719P by Braifus Auctioneers;b.That this Honorable court be pleased to order the unconditional release of Motor Vehicle Registration No. KBH 719P; andc.That the costs of the application be provided for. 6.In submissions dated 31st May 2024, the Objector contended that he was not a party to the suit and had never been served with any proclamation notice. He further submitted that the Auctioneer had acted in breach of Rule 12 of the Auctioneers Rules, having allegedly executed without valid warrants, and was therefore unlawfully detaining the motor vehicle. The Objector maintained that he had a lawful proprietary interest in the motor vehicle and urged the court to allow the application. 7.The 2nd Respondent, Stephen Kimondo Ngaruiya, averred that he was unaware of the proceedings and had not been served with any proclamation notice. He further stated that the attachment of Motor Vehicle Registration No. KBH 719P was unlawful as the warrants of attachment and sale had already expired. He also maintained that he had no knowledge of the allegations surrounding the subject motor vehicle and had never been summoned in relation thereto. 8.In response, the Claimant, Francis Mboi Mwangi, filed a Replying Affidavit dated 20th May 2024, contending that the application was an abuse of the court process. He averred that the Judgment Debtor was a relative of the Objector and that the proclamation had been effected while the motor vehicle was in the possession of the Judgment Debtor. He further contended that there was no credible evidence demonstrating a lawful transfer of ownership and that the purported transfer had been orchestrated solely to defeat the execution process. Consequently, he urged the court to dismiss the application. 9.The Claimant further deponed that upon proclamation, the motor vehicle was concealed. Upon tracing its whereabouts, the 1st Respondent allegedly emerged in the company of several individuals and asserted that the motor vehicle no longer belonged to him. The Claimant stated that he consequently sought police assistance and reported the matter at Kirwara Police Station. 10.Upon considering the material placed before it, the learned trial magistrate observed that the records produced by the Auctioneer at the time of proclamation reflected the 1st Respondent as the registered owner of the motor vehicle. Although the Claimant and the Auctioneer alleged that the transfer of ownership had been effected to defeat execution and that the Objector and the 2nd Respondent were related, no evidence had been tendered to substantiate those allegations. The court nevertheless found that the Objector was the current registered owner of the motor vehicle and held that the same could not be attached in satisfaction of the decretal sum. 11.The trial court acknowledged that the proclamation had been undertaken while the motor vehicle was still registered in the name of the 1st Respondent and observed that the subsequent transfer of ownership had been effected with unusual haste, thereby raising legitimate concerns. However, the court ultimately allowed the Objector's application and ordered that Motor Vehicle Registration No. KBH 719P be released to the Objector upon payment of the Auctioneer's fees, an order was released to that effect dated 20th June 2024. The ruling delivered is dated 20th June 2024. 12.Subsequently, Stephen Kimondo Ngaruiya (the Applicant) filed a Notice of Motion dated 25th May 2024 seeking, inter alia, orders that the default judgment entered against the 1st Respondent be lifted and set aside in its entirety, together with any consequential decree and/or orders arising therefrom. He further prayed that the costs of the application be in the cause. In considering the application, the learned trial magistrate reviewed the pleadings, affidavits, and submissions filed by the parties. The Applicant contended that he had never been served with the Statement of Claim or any court process and only became aware of the proceedings when Motor Vehicle Registration No. KBH 719P, belonging to the Objector, was attached by Braifus Auctioneers in execution of the decree. 13.The Applicant further asserted that he had a meritorious and triable defence, maintaining that he was neither the owner nor the driver of the offending motor vehicle and was therefore a stranger to the 2nd Respondent. On the other hand, the Claimant/Respondent maintained that the Applicant had been duly served with the court process on several occasions and had failed to enter appearance or file a response. The Claimant further pointed out that the Applicant had not denied ownership of the mobile telephone number through which service was effected. It was also contended that the Statement of Claim had subsequently been amended and that the suit against the 2nd Respondent (Evelyne Irene Adhiambo) had been withdrawn. 14.Upon considering the material before it, the trial court observed that the default judgment had been entered only after the court was satisfied that proper service had been effected upon the Applicant. The court further found that the Applicant had failed to adduce sufficient evidence to rebut the presumption of proper service. The learned magistrate also noted that the application had been filed approximately eleven months after the entry of the default judgment. Further, despite alleging the existence of a triable defence, the Applicant had failed to annex a draft statement of response or defence to demonstrate the nature of the issues he intended to raise. Consequently, the court held that no sufficient basis had been established for the exercise of its discretion in favour of the Applicant and accordingly dismissed the application, with each party ordered to bear its own costs. The ruling is dated 3rd October, 2024. 15.Stephen Kimondo Ngaruiya and Francis Mboi Mwangi filed separate appeals to the High Court, Civil Appeal E298 of 2024 and Civil Appeal No. E143 of 2024 respectively. Stephen Kimondo Ngaruiya being dissatisfied with the ruling and orders of the Small claims Court delivered on 3rd October 2024, raised the following grounds for Appeal in the current appeal, HCCA E298 of 2024; Top of Form Bottom of Formi.The learned magistrate erred in law and fact in finding and holding that there was proper service of the court process in the circumstances of the case.ii.The learned magistrate erred in law and filing to properly analyze the evidence submitted before arriving at the conclusion that there was proper service of the court process.iii.The learned magistrate erred in law and fact relying on the evidence of service provided at the stage of entry of the interlocutory judgment instead of taking into account the material placed before the court in the application to set aside the judgment.iv.The learned magistrate erred in law and fact in failing to consider the serious triable issues raised at paragraph 12 of the supporting affidavit sworn on 24/5/2024 and in particular the following issues;a.The Appellant was not the registered or beneficial owner of motor vehicle registration number KBH 719P at the time of the accident that occurred on 2/5/2023. The motor vehicle was owned by the 2nd respondent herein.b.The Appellant was not the driver of motor vehicle registration number KBH 719P and was a total stranger to the 2nd respondent herein.v.The learned magistrate erred in law and fact in misapplying the law on setting aside which allow setting aside of a regular default judgment where there is a valid defence that relates to triable issues.vi.The learned magistrate erred in law and fact in denying the Appellant a chance to be heard on the defence thus hampering the right to be heard.The Appellant proposed the court to grant the following orders;1.That this Appeal be allowed.2.That Ruling and orders of the Small Claims Court at Thika delivered on 3rd October 2024 by the Honorable Sylvia Wayodi in Thika Small Claim Court Case No. E801 of 2023; Francis Mboi Mwangi V Stephen Kimondo Ngaruiya be set aside and be substituted with an order allowing the Notice of Motion Application dated 24/5/2024 with costs.3.That the costs of this Appeal be awarded to the Appellants herein. 16.On the other hand, Francis Mboi Mwangi filed an appeal from the ruling and orders of Hon. Sylvia Wayodi delivered on 20th June 2024 in the current appeal HCCA E143 of 2024 and raised the following grounds;1.That the learned trial adjudicator erred in law in ordering the release of motor vehicle registration number KBH 719P to the 1st respondent despite making a finding that the same belonged to the 2nd respondent at the time of proclamation2.That the learned trial adjudicator erred in law in allowing the objection application by the 1st respondent which was based on fraud and illegalities.3.That the learned trial adjudicator erred in law in allowing the 1st respondent’s objection application which was perfectly designed to evade execution.4.That the learned trial magistrate erred in law in misconstruing the provisions of Order 22 on threshold that an objector should proof to be let off the hook.The Appellant prayed that the appeal be allowed and the ruing and orders issued on 20th June 2024 be set aside and substituted with an order dismissing the 1st respondent’s application dated 15th May 2025, that there be a stay of further proceedings in the small claims pending hearing and determination of this appeal, that there be orders of stay of orders and or implementation of the ruling and orders granted on 20th June 2024 and the appellant be awarded the costs of this appeal. 17.The Appeals arising from the same case in the Small Claims Court in Civil Case No. E801 of 2023, were consolidated into the current appeal, Civil Appeal No. E143 of 2024. 18.For purposes of clarity and because the files were consolidated as Civil Appeal No. E143 of 2024, therefore, Francis Mboi Mwangi will be the Appellant, Francis Ngaruiya Njoroge and Stephen Kimondo Ngaruiya will be the 1st and 2nd Respondents respectively. B. Submissions By Parties Appellant’s Submissions 19.The Appellant submitted that he is the decree-holder in the trial court, having obtained judgment in his favour on 7th December 2023. Although execution of the decree took some time to materialize, upon the successful attachment of motor vehicle registration number KBH 719P, the 1st Respondent filed objection proceedings claiming ownership of the said motor vehicle. The vehicle had previously been registered in the name of the 2nd Respondent, the judgment debtor, at the time the warrants were issued. 20.The Appellant submitted that the trial court acknowledged that ownership of the motor vehicle had changed, a fact which raised concerns and, in the circumstances, squarely raised the legal question regarding the consequences of a change of ownership of a proclaimed item during the execution of a decree. 21.In Appeal No. E143 of 2024, arising from the ruling delivered on 20th June 2024, the Appellant submitted that the learned trial magistrate erred in ordering the release of motor vehicle KBH 719P to the 1st Respondent despite finding that, at the time of proclamation, ownership vested in the 2nd Respondent (the judgment debtor). The Appellant argued that the order effectively curtailed the execution of a lawful decree against the 2nd Respondent. 22.The Appellant submitted that the purported change of ownership was merely intended to defeat the execution of a lawful decree. He contended that the 1st Respondent failed to tender any evidence, apart from the logbook, to demonstrate entitlement to or an equitable interest in the motor vehicle.Reliance was placed on the case of Palace Investment Limited v Geoffrey Mwenda & Another [2015] eKLR. Based on that decision, the Appellant argued that the trial magistrate fell into grave legal error by permitting a calculated scheme designed to frustrate the execution of a decree through the release of the motor vehicle to the 1st Respondent, thereby denying the Appellant the fruits of his judgment. 23.On the second issue, the Appellant submitted that the learned trial adjudicator erred in law in finding that the 1st Respondent (the objector) had no legal or equitable interest in motor vehicle registration number KBH 719P at the time of proclamation, yet proceeded to release the vehicle to the 1st Respondent and allow the objection application, which, according to the Appellant, was founded on fraud and illegality. 24.The Appellant submitted that the law requires a legal and/or equitable interest in a proclaimed item to be proved as existing at the time of proclamation, and not merely at the time of attachment. He further contended that the Respondents acted in concert but failed to place before the court any material demonstrating that the 1st Respondent had any right or interest in motor vehicle KBH 719P at the time of proclamation. 25.The Appellant relied on Rule 14 of the Auctioneers Rules, which makes it an offence to remove or alter goods comprised in a proclamation before the same have been redeemed. The Appellant submitted that the Respondents' actions amounted to an offence and that the trial magistrate ought not to have disregarded the same. 26.On the third issue, the Appellant submitted that the learned trial adjudicator erred in law by allowing the 1st Respondent's objection application, which was allegedly designed solely to evade execution. 27.In HCCA No. E298 of 2024, arising from the ruling delivered on 3rd October 2024, the Appellant first submitted that the trial magistrate erred in law and in fact in finding that there had been proper service of court process in the circumstances of the case. The Appellant, however, maintained that the court correctly found that service had been duly effected. In support of this position, he relied on the case of Frogoken Limited v Value Pak Food Limited (Nairobi Commercial and Tax Division HCCC No. 424 of 2010). 28.On the second issue, the Appellant submitted that the learned trial magistrate erred in law and in fact by failing to consider the serious triable issues raised in paragraph 12 of the supporting affidavit sworn on 24th May 2024. The Appellant argued that no draft defence had been filed by the Applicant (the Respondent herein) to demonstrate that the intended defence raised any triable issues. Reliance was placed on Margaret Njeri Mbugua v Kirk Mweya Nyaga [2016] eKLR, and the Appellant submitted that the trial court was correct in dismissing the application to set aside the judgment and that the dismissal ought to be upheld. Respondents Submissions 29.The Respondents submitted that this appeal arose from the ruling of the lower court delivered on 20thJune 2024. The ground for objection was that Francis Ngaruiya was the registered owner of motor vehicle KBH 719P. The objection was allowed as Francis Njoroge was not a party to the lower court matter. 30.The main contention was that the objector did not have legal interest in the said motor vehicle. The Respondents submitted that the Appellant has, without evidence contended that the motor vehicle was registered in the name of the judgement debtor, Stephen Kimondo Ngaruiya at the time of Application. 31.In relation to the appeal arising from the objection proceedings, the court found that the attachment of motor vehicle KBH 719P was unlawful. The judgment debtor denied having been served with a proclamation notice, and the evidence presented by the appellant and the auctioneer contained conflicting dates regarding the alleged service. 32.These inconsistencies led the court to conclude that no valid proclamation had been effected before attachment. The court further found that the vehicle was attached after the warrants of attachment had expired and before they were renewed, rendering the execution process irregular. The objector was shown to be the registered owner of the vehicle at the material time, thereby justifying the release of the vehicle. The court emphasized that attachment cannot be founded on expired warrants and that an objector who proves ownership is entitled to protection from execution proceedings. 33.The court also observed that the appeal had largely become academic because the motor vehicle had already been released to the objector in June 2024 and considerable time had elapsed since its release. The appellant retained other lawful avenues of execution against the judgment debtor. 34.Regarding HCCCA E298 of 2024, the appeal challenged the Small Claims Court's refusal to set aside a default judgment. The court noted that the respondent disputed service through WhatsApp, contending that he neither owned a smartphone nor used the application. Since the process server failed to disclose the telephone number used for the alleged service, the court found that service had not been satisfactorily proved. 35.The court further held that the trial magistrate misdirected herself by treating the absence of a draft defence as fatal to the application. It observed that there is no procedural requirement that an applicant must annex a draft defence before a court can determine whether triable issues exist. A court may identify triable issues from the affidavit evidence placed before it. C. Issues For Determination 36.Having considered the pleadings, the record of appeal, the rival submissions, and the rulings of the trial court, the following issues arise for determination:i.Whether the learned trial magistrate erred in dismissing the application dated 25th May 2024 seeking to set aside the default judgment entered against the 2nd Respondent.ii.Whether the learned trial magistrate erred in allowing the objection proceedings and ordering the release of Motor Vehicle Registration Number KBH 719P to the Objector.iii.Whether the Appellant has established sufficient grounds to warrant interference with the exercise of discretion by the trial court. D. Analysis Of The Issues For Determination Issue No. 1: Whether the learned trial magistrate erred in dismissing the application seeking to set aside the default judgment. 37.The principles governing the setting aside of a regular default judgment are well settled. A court's discretion to set aside such a judgment is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake, but not to assist a litigant who deliberately seeks to obstruct or delay the course of justice. 38.In Shah v Mbogo & Another [1967] EA 116, the court held that the discretion to set aside an ex parte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake. 39.Similarly, in Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the court stated that where a regular judgment has been entered, the court has unfettered discretion to set it aside upon such terms as may be just, provided sufficient cause is shown. 40.In the present case, the record demonstrates that before interlocutory judgment was entered on 7th December 2023, the trial court satisfied itself that service had been properly effected. More importantly, the Appellant annexed a certificate of service showing that service of the pleadings and court process had been duly effected upon the Respondents. The trial court considered the said evidence and was satisfied that service had been properly undertaken. 41.The burden thereafter shifted to the Applicant to rebut the presumption of proper service. However, apart from making bare denials, the Applicant failed to place before the court any cogent evidence disproving service. The court was therefore entitled to rely on the duly filed affidavit and certificate of service. 42.The Court of Appeal in Kenya Commercial Bank Ltd v Nyantange & Another [1990] KLR 443 held that an affidavit of service remains prima facie evidence of service unless successfully challenged through credible evidence. 43.Further, the Applicant waited for approximately eleven months after entry of judgment before seeking to set it aside. Such delay was neither satisfactorily explained nor justified. 44.The trial court also correctly observed that although the Applicant alleged the existence of a meritorious defence, he failed to annex a draft statement of defence. While failure to annex a draft defence is not invariably fatal, it remains an important consideration in determining whether triable issues exist. In Tree Shade Motor Limited v D.T. Dobie & Company (K) Ltd & Another [1995-1998] 1 EA 324, the court emphasized that an applicant must demonstrate the existence of a plausible defence worthy of consideration. 45.The Applicant merely asserted that he was not the owner or driver of the motor vehicle without tendering sufficient material to establish a bona fide defence. Consequently, the learned trial magistrate cannot be faulted for finding that no sufficient basis had been laid for setting aside a regularly entered judgment. 46.Moreover, Article 50 of the Constitution guarantees the right to a fair hearing, but that right must be exercised within the framework of procedural rules. A party who has been duly served and elects not to participate in proceedings cannot subsequently invoke Article 50 to defeat a regular judgment. 47.Accordingly, this court finds that the trial court properly exercised its discretion in dismissing the application dated 25th May 2024. Issue No. 2: Whether the learned trial magistrate erred in allowing the objection proceedings and ordering release of Motor Vehicle Registration Number KBH 719P. 48.The law governing objection proceedings is found under Order 22 Rule 51 of the Civil Procedure Rules. An objector is required to establish a legal or equitable interest in the attached property. 49.In Precast Portal Structures v Kenya Pencil Company Ltd & 2 Others [1993] eKLR, the court held that an objector need only establish ownership or a proprietary interest in the attached property to warrant its release from attachment. 50.The record shows that at the time of proclamation and attachment, NTSA records produced by the auctioneer indicated that Motor Vehicle Registration Number KBH 719P belonged to Stephen Kimondo Ngaruiya, the judgment debtor. It is equally evident that before determination of the objection proceedings, ownership had changed and the vehicle had become registered in the name of Francis Ngaruiya Njoroge, the Objector. 51.The learned trial magistrate expressly acknowledged that the transfer was undertaken with unusual haste and that the circumstances surrounding the transfer raised legitimate concerns. The court also recognized that the change of ownership raised eyebrows and could reasonably give rise to suspicion. 52.However, suspicion alone cannot substitute proof. 53.In Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, the court reiterated that allegations of fraud must be specifically pleaded and strictly proved to a standard higher than a balance of probabilities though not beyond reasonable doubt. 54.While the Appellant alleged that the transfer was intended to defeat execution, no documentary or oral evidence was tendered to prove fraud, collusion, or illegality. The trial court therefore correctly refrained from making a finding of fraud in the absence of evidence. 55.Further, the Objector was not a party to the substantive proceedings. Once he produced evidence showing that he was the registered owner of the motor vehicle at the time the objection proceedings were being determined, the court was obligated to protect his proprietary rights unless fraud or illegality was established. 56.The Court of Appeal in Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others [2014] eKLR held that attachment can only issue against property belonging to a judgment debtor and not against property belonging to third parties. 57.Although the circumstances of the transfer were questionable, the court could not condemn a non-party or deprive him of property without sufficient evidence establishing wrongdoing. The learned trial magistrate therefore properly balanced the competing interests by recognizing the suspicious circumstances while ultimately releasing the vehicle to its registered owner. 58.The Appellant retains other lawful modes of execution against the judgment debtor and cannot execute against property registered in the name of a person who is not a party to the proceedings. 59.Accordingly, this court finds no error in the trial court's decision allowing the objection proceedings and ordering release of the motor vehicle. Issue No. 3: Whether this court should interfere with the exercise of discretion by the trial court. 60.An appellate court will not interfere with the exercise of judicial discretion unless it is shown that the lower court misdirected itself, considered irrelevant matters, failed to consider relevant matters, or arrived at a plainly wrong decision. 61.In Mbogo & Another v Shah [1968] EA 93, the court held that an appellate court should not interfere with the exercise of discretion merely because it would have reached a different conclusion. 62.Having reviewed the entire record, this court is satisfied that the trial magistrate properly directed herself on the applicable law, considered all relevant material, and arrived at conclusions supported by the evidence. 63.The decision declining to set aside the default judgment was based on proof of service, unexplained delay, and failure to demonstrate a credible defence. 64.Similarly, the decision allowing the objection proceedings was grounded on the evidence of current ownership and the absence of proof of fraud or collusion against the Objector. 65.No basis has therefore been established to justify appellate interference. E. Disposition 66.Having carefully reconsidered the entire record, the rival submissions, and the applicable law, this court is satisfied that the learned trial magistrate properly exercised her discretion in both impugned rulings. With regard to the application to set aside the default judgment, the evidence on record, including the certificate of service annexed by the Appellant, demonstrated that service of the Statement of Claim and court process was duly effected upon the 2nd Respondent. The trial court was therefore justified in entering interlocutory judgment on 7th December 2023 and equally justified in declining to set aside the same, particularly in light of the inordinate delay and the failure by the Applicant to demonstrate a plausible defence. Concerning the objection proceedings, the court notes that the NTSA records available at the time of attachment showed that Motor Vehicle Registration Number KBH 719P belonged to Stephen Kimondo Ngaruiya, the judgment debtor. However, by the time the objection proceedings were heard and determined, ownership had changed to Francis Ngaruiya Njoroge, the Objector. 67.Although the circumstances surrounding the transfer raised legitimate concerns and warranted scrutiny, no evidence was tendered to establish fraud, collusion, or illegality to the requisite standard. Consequently, since the Objector was not a party to the proceedings and was the registered owner of the motor vehicle at the time of determination of the objection proceedings, the trial court properly ordered its release. This court therefore finds no basis upon which to interfere with either of the decisions rendered by the Small Claims Court.Accordingly, the following orders issue:1.The Appeal in HCCA No. E298 of 2024 challenging the Ruling delivered on 3rd October 2024 is hereby dismissed in its entirety.2.The Appeal in HCCA No. E143 of 2024 challenging the Ruling delivered on 20th June 2024 is hereby dismissed in its entirety.3.The Rulings and Orders of the Small Claims Court delivered on 20th June 2024 and 3rd October 2024 are hereby upheld.4.Each party shall bear its own costs of the consolidated appeals.It is so ordered. SIGNED BY/FOR:HON. JUSTICE ABDI M. HASSANThika High CourtHigh Court Div Date: 2026-07-20 23:01:34