https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12764

National Transport and Safety Authority v Njenga & another (Civil Appeal E1200 of 2025) [2026] KEHC 12764 (KLR) (Civ) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12764 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1200 of 2025 WA Okwany, J July 30, 2026 Between National Transport And Safety Authority Appellant and Judy Mwihaki Njenga 1st Respondent George Kang'Ethe Maina 2nd Respondent (Being an appeal from the Ruling and Order of Hon. Z.K. Kiboss, Principal Magistrate, delivered on 29th October 2025 in Milimani CMCC No. E616 of 2024) Judgment Background 1.The dispute before the subordinate court arose from the purchase by the 1st Respondent of motor vehicle registration number KDG 422B, Volkswagen Golf, from the 2nd Respondent. 2.The 1st Respondent instituted a suit against both the vendor and the National Transport and Safety Authority (NTSA), alleging that the Appellant, in its statutory capacity as custodian of motor vehicle registration records, failed to maintain accurate records and negligently facilitated or permitted the transfer of the subject motor vehicle to the detriment of the Respondent. 3.The plaint was filed on 10th July 2024 and according to the process server's affidavit, summons to enter appearance together with the plaint were served upon the Appellant at its offices situated at Upper Hill Chambers on 30th July 2024. The documents were allegedly acknowledged by the Appellant's official stamp. 4.The Appellant neither entered appearance nor filed a defence and consequently, upon the Respondent's request, interlocutory judgment was entered on 20th May 2025. 5.Following commencement of execution proceedings, the Appellant moved the trial court through a Notice of Motion dated 21st August 2025 seeking, inter alia, stay of execution, setting aside of the default judgment and leave to enter appearance and file a defence out of time. 6.The application was opposed by the 1st Respondent through replying affidavits. 7.Upon considering the application, affidavits and rival submissions, the learned magistrate on 29th October 2025 dismissed the application with costs. 8.Aggrieved by the said decision, the Appellant lodged the present appeal. The Appeal 9.In summary, the grounds contained in the Memorandum of Appeal fault the trial court for:a.finding that the default judgment was regular despite the Appellant's contention that it had not been served with the mention notices preceding formal proof and entry of judgment;b.the failure by the trial court to appreciate that entry of judgment on a mention date rendered the proceedings irregular;c.declining to set aside the judgment notwithstanding the principles governing the exercise of discretion under Order 10 Rule 11 of the Civil Procedure Rules;d.finding that the Appellant's intended defence disclosed no triable issues;e.failing to give effect to Articles 50(1) and 159 of the Constitution;f.placing undue emphasis on procedural technicalities at the expense of substantive justice;g.failing to consider the overriding objective under Sections 1A and 1B of the Civil Procedure Act;h.failing to appreciate the public interest implications arising from the Appellant's statutory mandate as custodian of motor vehicle records. 10.The Appeal was canvassed by way of written submissions which I have considered. Appellant's Submissions 11.The Appellant submitted that although summons may have been served initially, it was never served with the subsequent mention notices that culminated in formal proof and eventual entry of judgment. Consequently, it argued that the default judgment was irregular and ought to have been set aside as of right. 12.Reliance was placed on James Kanyiita Nderitu & Another vs. Marios Philotas Ghikas & Another [2016] eKLR, where the Court of Appeal distinguished between regular and irregular default judgments and held that an irregular judgment entered without proper service must be set aside ex debito justitiae. 13.The Appellant argued that even assuming the judgment was regular, it nevertheless satisfied the principles governing the exercise of discretion under Order 10 Rule 11 because it had demonstrated sufficient cause, it possessed a bona fide defence raising substantial questions of law and that justice demanded determination of the dispute on the merits. 14.It was submitted that the intended defence raises serious questions concerning the scope of the Appellant's statutory obligations under the National Transport and Safety Authority Act, whether Section 25 of that Act creates a private cause of action, whether the Appellant owed a private duty of care to purchasers of motor vehicles, causation and statutory limitation of liability. 15.According to the Appellant, these constituted bona fide triable issues under the principles stated in DT Dobie & Company (Kenya) Ltd vs. Muchina [1980] KLR 1. 16.The Appellant also submitted that the learned magistrate erred by concluding that no draft defence had been filed when, according to the Appellant, a defence had in fact accompanied the application. 17.The Appellant further invoked Articles 50(1) and 159 of the Constitution, contending that refusal to set aside the judgment denied it the constitutional right to a fair hearing and elevated procedural technicalities above substantive justice. 18.It was also argued that Sections 1A and 1B of the Civil Procedure Act requires courts to facilitate determination of disputes on their merits rather than by procedural default. 19.The Appellant maintained that because it is a statutory body entrusted with custody of public motor vehicle records and funded from public resources, public interest required that the dispute be heard substantively before public funds could be exposed to execution. 1st Respondent's Submissions 20.The 1st Respondent supported the ruling of the subordinate court and submitted that the appeal discloses no error warranting appellate interference. 21.It was contended that summons to enter appearance were duly served upon the Appellant on 30th July 2024 at its physical offices and that the pleadings were acknowledged by the Appellant's official stamp. 22.According to the Respondent, despite proper service, the Appellant neither entered appearance nor filed a defence within the stipulated time, thereby entitling the Respondent to request interlocutory judgment. 23.The Respondent submitted that the Appellant never sought to cross-examine the process server, never denied ownership of the official stamp appearing on the pleadings, never denied that the place of service was its office, and never produced any internal records to rebut the affidavit of service. 24.Reliance was placed upon Shadrack Arap Baiywo vs. Bodi Bach [1987] eKLR, for the proposition that an affidavit of service enjoys a presumption of regularity unless displaced by cogent evidence. 25.The Respondent maintained that once service was established, the default judgment entered on 20th May 2025 was regular. 26.It was further submitted that the Appellant incorrectly conflated service of summons with subsequent mention notices and that failure to attend mention dates could not invalidate a regularly entered interlocutory judgment. 27.On the exercise of discretion under Order 10 Rule 11, the Respondent argued that the learned magistrate correctly applied the principles stated in Rayat Trading Co. Ltd vs. Bank of Baroda & Tetezi House Ltd [2018] eKLR, and properly found that no satisfactory explanation had been offered for the Appellant's failure to enter appearance. It was submitted that the delay of over one year was inordinate, that the Appellant moved the court only after execution commenced and that no sufficient cause had been demonstrated and no bona fide defence had been exhibited before the trial court. 28.The Respondent further argued that Articles 50 and 159 of the Constitution could not be invoked to excuse deliberate indolence or disregard of procedural obligations after proper service. 29.It was submitted that the learned magistrate exercised judicial discretion properly, considered all relevant matters and that the appellate court ought not to interfere with such exercise of discretion in the absence of misdirection or error of principle. 30.As the first appellate court, this Court is enjoined to reconsider the entire record, evaluate the evidence placed before the trial court and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses. This duty has been settled in Selle & Another vs. Associated Motor Boat Co. Ltd [1968] EA 123 and Peters v s.Sunday Post Ltd [1958] EA 424. Analysis and Determination 31.Having considered the record, the memorandum of appeal and the rival submissions, I find that the issues that arise for determination are:a.Whether the Appellant was duly served with summons to enter appearance and the subsequent court process.b.Whether the interlocutory judgment entered on 20th May 2025 was regular.c.Whether the learned magistrate properly exercised discretion under Order 10 Rule 11 of the Civil Procedure Rules.d.Whether the Appellant demonstrated a bona fide defence raising triable issues.e.Whether the learned magistrate failed to give effect to Articles 50 and 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act.f.Whether this Court ought to interfere with the exercise of discretion by the subordinate court. Service With Summons to Enter Appearance 32.The Appellant's primary complaint is that the learned trial magistrate erred in finding that it had been duly served with summons to enter appearance and the pleadings. It contends that the process leading to the entry of interlocutory judgment was irregular because it was allegedly not served with the mention notices preceding the entry of judgment. 33.The Respondent, on the other hand, maintains that service of summons was properly effected upon the Appellant on 30th July 2024 at its offices situated at Upper Hill Chambers, Nairobi. According to the affidavit of service, the pleadings were received and acknowledged by the Appellant through its official stamp. The Respondent further submits that the Appellant neither sought to cross-examine the process server nor produced any evidence rebutting the affidavit of service. 34.The law relating to proof of service is well settled. It is trite that an affidavit of service constitutes prima facie evidence that service was duly effected. A party disputing service bears the burden of displacing that evidence by credible and cogent material. 35.In Shadrack Arap Baiywo vs. Bodi Bach [1987] eKLR, the Court held that the return of service of a duly authorized process server enjoys a presumption of correctness unless impeached through cross-examination or other credible evidence demonstrating that service was not effected. 36.In the present case, the trial record shows that the Respondent relied upon an affidavit of service indicating that summons and pleadings were served at the Appellant's offices on 30th July 2024 and that receipt thereof was acknowledged by an official stamp bearing the Appellant's name. 37.The material placed before the subordinate court reveal that the Appellant did not deny that the address at which service was effected constituted its physical offices. Neither did it deny that the stamp appearing on the pleadings belonged to it. Equally, no affidavit was sworn by the officer alleged to have received the pleadings denying receipt, nor were internal registers, mail movement records or any documentary evidence produced to demonstrate that the pleadings had never reached the Appellant. 38.More significantly, although the Appellant challenged service, it did not seek leave to cross-examine the process server on the contents of the affidavit of service. Such cross-examination would ordinarily be the most effective means of impeaching a disputed affidavit of service. 39.The Court appreciates that service is the foundation upon which every default judgment rests. Where service is not proved, any judgment entered is liable to be set aside ex debito justitiae. However, where service is proved, the inquiry shifts to whether the court should exercise its discretion to set aside a regular judgment. 40.Upon independently evaluating the record, this Court is satisfied that the learned magistrate had, before her, evidence capable of supporting the finding that summons to enter appearance and the accompanying pleadings had been duly served upon the Appellant. 41.The Appellant has urged that failure to serve mention notices rendered the proceedings irregular. With respect, I find that the said argument conflates two distinct procedural stages. The material question in determining the regularity of an interlocutory judgment is whether summons to enter appearance were duly served and whether the defendant failed to respond within the time prescribed by law. Subsequent mention dates cannot ordinarily cure or invalidate compliance with the initial statutory requirements governing entry of default judgment. 42.The Court therefore finds no basis for interfering with the factual finding of the learned magistrate that service of summons was proved. 43.On whether the interlocutory judgment was irregular, the Appellant submitted that the interlocutory judgment was irregular because summons to enter appearance were not properly served and because the judgment was entered on a mention date. The Respondent, on the other hand, maintained that summons were duly served upon the Appellant on 30th July 2024, that no appearance or defence was filed within the prescribed period and that the Respondent was therefore entitled to request for interlocutory judgment. 44.The principles governing regular and irregular default judgments are well settled. In James Kanyiita Nderitu & Another vs. Marios Philotas Ghikas & Another [2016] eKLR, the Court of Appeal held that where summons have not been served, any judgment entered is irregular and must be set aside ex debito justitiae. However, where service has been properly effected and the defendant fails to enter appearance or file a defence, the judgment is regular and the decision whether to set it aside lies within the discretion of the court. 45.I have re-evaluated the affidavit of service and the record of the subordinate court. I am satisfied that summons to enter appearance and the plaint were duly served upon the Appellant on 30th July 2024. The Appellant neither entered appearance nor filed a defence within the time stipulated under the Civil Procedure Rules. Consequently, the Respondent was entitled to request interlocutory judgment. 46.I am equally not persuaded by the Appellant's argument that the judgment became irregular merely because it was entered on a mention date. Once the conditions prescribed under the Civil Procedure Rules had been met, the court was entitled to enter judgment. The date on which the request was considered did not affect the validity of the judgment. 47.I therefore find that the interlocutory judgment entered on 20th May 2025 was a regular judgment. 48.Having found that the judgment was regular, the application before the subordinate court fell to be determined under Order 10 Rule 11 of the Civil Procedure Rules, which empowers the court to set aside a default judgment upon such terms as are just. 49.The Appellant submitted that the trial court failed to exercise its discretion judiciously and failed to appreciate that the intended defence raised triable issues regarding its statutory mandate under the National Transport and Safety Authority Act. The Respondent, on the other hand, submitted that the Appellant had offered no satisfactory explanation for failing to participate in the proceedings despite having been served over one year earlier. 50.The principles governing the exercise of discretion under Order 10 Rule 11 are settled. In Patel vs. EA Cargo Handling Services Ltd [1974] EA 75, the Court held that the discretion to set aside a regular judgment is unfettered but must be exercised upon such terms as are just. Similarly, in Shah vs. Mbogo & Another [1967] EA 116, the Court stated that the discretion is intended to avoid injustice arising from accident, inadvertence or excusable mistake and not to assist a litigant who has deliberately sought to obstruct or delay the course of justice. 51.More recently, in Rayat Trading Co. Ltd vs. Bank of Baroda (Kenya) Ltd & Tetezi House Ltd [2018] eKLR, the Court of Appeal held that the court ought to consider the reason for the default, the length of delay, whether the intended defence raises triable issues, the prejudice to the parties and the interests of justice. 52.In the present case, it is common ground that the Appellant took no step after service of summons until execution proceedings had commenced. The delay exceeded one year. Beyond disputing service, the Appellant did not place before the subordinate court any satisfactory explanation accounting for its prolonged inactivity. Once the learned magistrate found that service had been properly effected, it became incumbent upon the Appellant to explain why no appearance or defence had been filed. No such explanation was forthcoming. 53.The Appellant also contended that its intended defence disclosed triable issues. While courts generally lean towards sustaining a defence that raises even a single bona fide triable issue, the material placed before the subordinate court consisted largely of general denials and assertions regarding the Appellant's statutory mandate. It did not directly answer the specific particulars of negligence pleaded by the Respondent. I therefore find no basis for faulting the learned magistrate's conclusion that no sufficient cause had been shown for setting aside the judgment. 54.This appeal challenges the exercise of judicial discretion. The circumstances under which an appellate court may interfere with such discretion are settled. In Mbogo & Another vs. Shah [1968] EA 93, the Court held that an appellate court should not interfere unless the trial court misdirected itself in law, took into account irrelevant matters, failed to consider relevant matters or arrived at a plainly wrong decision. 55.Having independently reconsidered the material that was before the subordinate court, I am unable to find any error of principle in the exercise of discretion. I find that the learned magistrate correctly considered the issue of service, appreciated the distinction between regular and irregular judgments, applied the principles governing Order 10 Rule 11 and concluded that the Appellant had failed to demonstrate sufficient cause for setting aside the judgment. 56.I am equally not persuaded that Articles 50(1) and 159(2)(d) of the Constitution or Sections 1A and 1B of the Civil Procedure Act avail the Appellant. Those provisions were never intended to excuse indolence or deliberate failure to respond to duly served court process. As the Supreme Court observed in Raila Odinga & Others vs. IEBC & Others [2013] eKLR, and the Court of Appeal reiterated in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others [2014] eKLR, Article 159 is not a panacea for every procedural default. 57.In the circumstances of this case, I find no basis upon which this Court can interfere with the exercise of discretion by the learned trial magistrate. Disposition 58.The upshot is that the appeal lacks merit and is hereby dismissed with costs to the Respondent.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026HON W A OKWANYJUDGE