https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12213

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT BUNGOMA** **CIVIL APPEAL E034 OF 2025** **BETWEEN** **GEOFFREY WABWILE NYONGESA (SUING AS THE ADMINISTRATOR OF THE ESTATE OF NICHOLAS** **KHAEMBA KUNGURU DECEASED……………………………………………………..APPELLANT** **VERSUS** **PETER WAFULA MAKOKHA……….……………………..RESPONDENT** **(Being an Appeal from the Ruling of the Senior Resident Magistrate at Bungoma Hon T.A. Madowo, SRM delivered on the 29th day of January 2025 in CMCC No. 458 of 2016)** **JUDGMENT** 1. By a Notice of Motion dated 26th February 2024 and filed under a Certificate of Urgency in **Bungoma CMCC No. 458 of 2016**, the Respondent herein, describing himself as Objector/Applicant, moved the trial court seeking, in the main, orders that pending the hearing of his objection there be a stay of sale of certain livestock attached in execution of a decree in the said suit, and that the said livestock, being his personal property, be released to him. 2. The application originated from the execution of a decree issued inthe said suit concerning a lawsuit in which the Appellant, acting as the administrator of the estate of the deceased Nicholas Khaemba Kunguru, obtained judgment on 5th September 2018 against David Simiyu Wafula and Duncan Mburu Mungai, jointly and severally, for a sum of Kshs. 126,680/= inclusive of costs and interest. 3. This judgment was in relation to the death of the deceased in a road traffic accident. Pursuant to the implementation of the decree, a warrant of attachment for movable property was issued in the amount of Kshs. 334,050/= representing the decretal sum together with costs. 4. Pursuant to the said warrant, M/s Timpech Auctioneers, instructed by the Appellant's advocates, proclaimed and attached livestock at the home of the Respondent on 23rd February 2024. The Respondent, who was not a party to the suit, contended that the attached livestock was his personal property and had nothing to do with the judgment debtors, and it is this contention that founded his Notice of Motion of 26th February 2024. 5. The record shows that the application was certified urgent in part and interim orders staying the sale of the livestock were granted pending inter partes hearing. The application was thereafter listed for hearing on 6th March 2024, on which date counsel then on record for the Respondent/Objector was present while counsel for the Appellant was absent, and the hearing was consequently rescheduled to 21st March 2024. 6. On the latter date, the record reflects that there was no appearance by either party. Rather than dismiss the application for want of prosecution, the trial court fixed the matter for ruling, which was delivered on 11th April 2024 by Hon. T.M. Olando, Principal Magistrate, allowing the Objector's application in its entirety on a finding that the attached livestock belonged to the Objector and that there was no basis for its attachment. 7. It is common ground that notwithstanding the ruling in his favour, the Respondent's livestock was never returned to him. This prompted him to file a claim at the Malaba Small Claims Court, being **SCCCOMM No. E036 of 2024**, against the Appellant and the auctioneer, one Timothy Wanjala Wekesa t/a Timpech Auctioneers, seeking compensation of Kshs. 167,000/= for loss occasioned by the wrongful attachment of his livestock. 8. The Appellant's case is that it was only upon being served with the said small claims suit that he became aware, for the first time, of the existence of the objection proceedings and of the ruling delivered on 11th April 2024 pursuant thereto. He thereupon filed a Notice of Motion dated 12th August 2024 in **CMCC No. 458 of 2016**, under certificate of urgency, seeking, among other orders, that the ruling of 11th April 2024 and all consequential orders be set aside, and that the application dated 26th February 2024 be heard de novo. 9. The application was premised on the ground that the Appellant was never served with the Notice of Motion dated 26th February 2024, nor with any hearing notice in respect thereof, and that he had thereby been condemned unheard contrary to his right to fair hearing under **Article 50 of the Constitution**. 10. The application was opposed. The Respondent, in a Replying Affidavit sworn on 28th August 2024, deposed that the application of 26th February 2024 had been duly served upon the Appellant's advocate, that the objection proceedings were not conducted secretly as alleged, that the livestock solely belonged to him, and that in any event the decretal sum in the suit had been fully paid and the Appellant compensated, rendering the application dated 12th August 2024 frivolous, vexatious and an abuse of the process of the court. 11. By a consent recorded on 21st August 2024, prayer 2 of the application (stay of execution of the ruling of 11/4/2024) was granted in the interim, and directions were given for the application to be canvassed by way of written submissions, the Appellant to file within 14 days and the Respondent within 14 days thereafter. It is on record that only the Appellant complied, filing written submissions dated 19th November 2024. There is no record that the Respondent filed submissions in the subordinate court. 12. In a Ruling delivered on 29th January 2025, the trial court dismissed the Appellant's application dated 12th August 2024 without costs. The learned trial magistrate held that objection proceedings are governed by **Order 22 Rule 51(1) of the Civil Procedure Rules**, traced the chronology of the objection application culminating in the ruling of 11th April 2024, and found that the court had determined the Objector's application on merit. 13. The trial magistrate further found that the record showed that the Appellant had, subsequent to the ruling, proceeded with execution against the judgment debtors by extracting fresh warrants of attachment dated 29th May 2024, and concluded on this basis that it was "not plausible" that the Appellant was unaware of the application and the ruling. The application was accordingly dismissed. 14. Aggrieved, the Appellant preferred the present appeal vide a Memorandum of Appeal dated 17th February 2025, premised on the following grounds: 15. **That the Learned Trial Magistrate erred in law and in fact when she misdirected herself on the issue of service, assuming that the application was served, thus arriving at a wrong conclusion.** 16. **That the Learned Trial Magistrate erred in law and in fact when she assumed that the applicant was aware of the application, thus arriving at a wrong conclusion**. **Appellant's Submissions** 1. Learned counsel for the Appellant submitted that the trial court's own record, at pages 54–55 thereof, shows that on 6th March 2024 counsel then on record for the Respondent was present and it was he who informed the court that Mr Wamalwa S., counsel for the Appellant, was absent, occasioning the adjournment to 21st March 2024. 2. Counsel contended that this contradicts the trial court's later finding, at the ruling stage, that the earlier adjournment had been on account of counsel's bereavement, and submitted that this discrepancy demonstrates that the trial court did not accurately apply its mind to its own record. 3. Counsel further submitted that since the Appellant's advocate was absent on 6th March 2024, he ought thereafter to have been served afresh with notice of the hearing fixed for 21st March 2024, but that no such service was ever effected, there being no affidavit of service on the court record in respect of the application dated 26th February 2024 or of any hearing notice issued pursuant thereto. 4. Reliance was placed on **Pithon Waweru Maina v Thuku Mugiria [1983] KLR 78,** for the proposition that where a judgment or order has been obtained in the absence of a party owing to non-service, the setting aside of that judgment or order is not a matter of judicial discretion but a matter of right, since a party cannot be said to have been afforded an opportunity to be heard where he was never served. 5. It was submitted that in the absence of any proof of service on record, the trial magistrate erred in finding that the Appellant had been served with, or was otherwise aware of, the application dated 26th February 2024. **Respondent's Submissions** 1. Despite the appeal having been placed on record and the Record of Appeal duly served, no submissions were filed on behalf of the Respondent. The appeal has accordingly been determined on the strength of the record of appeal and the submissions filed by the Appellant. **Determination** 1. Having considered the grounds of appeal, the record of appeal, and the submissions on record, I am of the considered opinion that the singular question for determination is; 2. **Whether the Appellant herein was served with the Objection proceedings before the Lower Court.** 3. **trial court erred in dismissing the appellant's application dated 12th August 2024** 4. Before turning to the issue for determination, it bears restating as was held in **Selle vs Associated Motorboat Company Ltd [1968] E.A. 123**, that the duty of this 1st Apppellate Court is to re-consider and re-evaluate the evidence tendered before the trial court and reach its own independent conclusions as follows; “.... **An appeal from a High Court is by way of rehearing and the Court of Appeal is a first appellate court. It is not sufficient to merely scrutinize the evidence and say whether the trial Judge was right or wrong. An appellate court is not bound to accept the trial Judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally.”** 1. However, in the present case, the appeal is not against findings of fact made after a comprehensive trial but against the exercising of discretion in an interlocutory application, specifically, whether to set aside a ruling obtained in the absence of a party. In **Mbogo and Another v Shah [1968] EA 93** the Court of Appeal for Eastern Africa held that; **“...a Court of Appeal should not interfere with the exercise of the discretion of a single judge unless it is satisfied that the judge misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”** 1. It is advantageous, at this stage, to reiterate the distinction delineated by the Court of Appeal between a regular and an irregularly obtained default judgment or order, as detailed in **James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR**, that; **“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 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.** **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**.” 1. Applying the foregoing to the present case, the question is which of the two scenarios applies to the Appellant’s Application that was before the Hon Magistrate. On this, I find the position taken by the trial court difficult to sustain. First, the record itself, as correctly pointed out by counsel for the Appellant, indicates that the adjournment of 6th March 2024 was occasioned by the absence of the Appellant's counsel, and not, as later recited in the ruling of 29th January 2025, by the bereavement of counsel. 2. This inconsistency between the trial court's own record and its subsequent recollection of events is not immaterial, for it goes to the heart of whether the Appellant was, in fact, kept informed of the progress of an application to which he was a necessary party. 3. Secondly, and more fundamentally, there is no record from the proceedings before the subordinate court to demonstrate that the Appellant or his advocate was duly served with a hearing notice scheduled for 21st March 2024, the date on which the application was, in the absence of the Appellant, set down for a ruling. 4. Further to that, no Affidavit of Service was availed to court at all to demonstrate and confirm that not only was the application dated 26th February 2024 served upon the Appellant, but also that any subsequent hearing notice, was served. This despite the fact that the onus of proving service rested squarely on the Respondent. 5. The Respondent assertion in his Replying Affidavit that service had been effected upon the Appellant's advocate remains just that. A mere assertion, unsupported by an affidavit of service or any other credible proof of service. This, cannot, in my well considered opinion, discharge that burden that is placed upon the Respondent by law. 6. Thirdly, I do not find the inference made by the trial court, that the Appellant's subsequent issuance of new warrants of attachment on 29th May 2024, indicates his awareness of the objection application and the judgment dated 11th April 2024, to be a well-founded conclusion. This is because the issuance of a warrant of attachment in enforcement of the underlying decree remains consistent with the Appellant's continued pursuit of execution against the judgment debtors, despite being unaware that a third party had, in the interim, successfully contested and had released a portion of the attached property. In the absence of direct evidence connecting that subsequent action to knowledge of the objection proceedings, the inference made by the trial court is, at best, speculative and cannot replace the lack of proof regarding service. 7. It follows therefore that, on the record before this court, and in the absence of any submissions or evidence to the contrary from the Respondent, I am satisfied that the ruling of 11th April 2024 was obtained in circumstances where the Appellant was not shown to have been served with, or otherwise made aware of, the application upon which it was founded. 8. Applying the principle in **James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another (supra),** the Appellant was and is entitled, as of right, to have that ruling set aside *ex dibito justiciae,* and the underlying application heard afresh upon proper service. In this regard therefore, I am satisfied that the Hon Trial Magistrate erred in determining the matter by way of the exercise of discretion and declining to set the same aside for the reasons given. 9. This is by dint of the fact that this court having critically examined and analysed the proceedings before the trial regarding the entirety of the Objection proceedings and its subsequent finding that the Appellant herein was not at all served and was therefore ultimately condemned unheard, this court is satisfied that the circumstances as they are did not then accord the Hon Trial Magistrate the opportunity to apply and exercise discretion in reaching the determination on the Application by the Appellant whose impugned ruling is the subject of this appeal. 10. For the foregoing reasons, I find that the appeal has merit. I am, however, mindful that the objection proceedings determined by the ruling of 11th April 2024 concern the Respondent's claim to livestock which he has consistently maintained is his own property, distinct from that of the judgment debtors. It would not serve the interests of justice to simply reinstate the attachment; rather, fairness demands that the application dated 26th February 2024 be heard afresh, with both parties accorded a full opportunity to be heard. 11. Consequently, I make the following orders: 1. **That the appeal is now hereby allowed.** 2. **That the Ruling of the Hon T. A. Madowo delivered on 29th January 2025 in Bungoma CMCC No. 458 of 2016 dismissing the Appellant’s Application seeking to set aside the Ruling dated 11th April 2024, together with all the consequential orders thereto, and have the matter heard afresh, is now hereby set aside.** 3. **That the Notice of Motion dated 26th February 2024 is now hereby remitted to the Subordinate court for hearing de novo, upon proper service of the same as provided under the Civil Procedure Act and Rules** 4. **That the Appellant shall have the costs of this appeal.** **Read, Dated and Signed at BUNGOMA on 30th July 2026.** **E. OMINDE** **JUDGE**