Njoroge v Gathua (Civil Appeal E118 of 2024) [2026] KEHC 12641 (KLR) (30 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **CIVIL APPEAL NO. E118 OF 2024** **PETER KAMAU NJOROGE ................................................APPELLANT** **VERSUS** **KENNETH MBIRA GATHUA ........................................RESPONDENT** **JUDGMENT** 1. The Respondent sued the Appellant in the Lower Court seeking for damages for injuries sustained as a result of a road accident which occurred on 15/02/2023 along Thika-Githumu -Kangari road. The Accident involved the Appellant’s Motor vehicle registration number KBJ 802 P. The Respondent was aboard the subject vehicle. 2. The Appellant never entered appearance nor filed a defence and interlocutory judgment was entered against him. The matter proceeded for formal proof and the final judgment was delivered on 27th March, 2024. 3. On 30th April, 2024 the Appellant filed an Application under Certificate of Urgency seeking for the setting aside of the exparte judgment and leave to defend the suit. The trial Court heard the Application, and dismissed it. 4. The present Appeal is against the said dismissal. **Memorandum of Appeal** 1. The Appellant has proffered the following grounds: - 2. *The Learned Magistrate erred in holding that there was proper service through the WhatsApp of mobile number 0722626803 while in fact that was not appellant’s number but his driver number who had stopped working with him.* 3. *The Learned Magistrate erred in holding that the Appellant is the one with the burden of proving that number 0722626803 was truly not his while in fact it was the Respondent burden to do so.* 4. *The Learned Magistrate erred in dismissing the Appellant application on the ground that he did not annex to the application a draft defence while he had stated in his supporting affidavit in Paragraph 5 what his defence is.* 5. *The Learned Magistrate erred in not considering all the facts that were supportive of the Appellant case.* 6. The Appeal was heard by way of Written Submission. **Appellant’s Submissions** 1. The Appellant submits that he was not served with summons to enter appearance; That it is not disputed that service was effected through WhatsApp platform but argues that the telephone number used being cell phone No. 0722626803 did not belong to him, but belonged to his driver who had since left employment. He states that his Telephone No. 0722979336. He argues that it follows that the case was heard Ex-parte. 2. The Appellant faults the trial Magistrate on his finding that there was no draft defence attached to the Application, arguing that his defence had been stated in the Affidavit as follows: “That *I have a good defence in that my said vehicle was not to blame for the accident and therefore I am not liable to any damages to the Plaintiff”.* **Respondent’s Submissions** 1. It is the Respondent’s first submissions that the Appellant never annexed any draft defence to the Application and therefore the question as to whether the Appellant has a defence with triable issues, is a matter of speculation. 2. The Respondent further submits that allowing the setting side of the judgment would be highly prejudice to him as it would mean his right to enjoy the fruits of the judgment will be delayed. 3. On service of summons, the Respondent submits that there is evidence of service, that service was affected via WhatsApp as demonstrated by the screenshots attached to WhatsApp number, which indicate that the summons was delivered. 4. It is argued that the service fully complied with the provisions of **Order 5 Rules 15(1)** and **Order 5 Rule 22(c) of the Civil Procedure (Amendment) Rules, 2020** on electronic service. 5. The Respondent contends that there is always a prescription of service as per what the Process Server deposes in the Affidavit of service and where there is doubt it is desirable to call and Cross-examine the Process-Server. In this regard the Respondent has relied on the Court of Appeal decision in ***Dickson Daniel Karaba .vs. John Ngata Kariuki & 2 Others [2020] eKLR*** and also the decision in ***Mohammed Munye Omar vs Athman [2015] eKLR.*** It is therefore the Respondent’s contention thatthe onus was on the Appellant to call for the Cross-examination of the Process-server. 6. It is the Respondent’s final submissions that the discretion to set aside default judgment is not designed to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice, which is what the Appellant is doing in this case. That the judgment was regular and the Respondent has failed to show any cause as to why it should be set aside. **The pleadings** *The Appellant’s case* 1. In the affidavit in support of the Application the Appellant states that he was not aware of the case as he was not served with summons to enter appearance; that he only came to learn about the case when his Insurer was served with the judgment; that he has a good defence in that his driver was not to blame for the accident and hence he was not liable for the accident. He further states that the Telephone number through which service was affected, that is, 0722-626803 belonged to his driver and not him. That his own number is 0722-979336. ***The Respondent’s case*** 1. The respondent terms the Appellant’s allegation that he was not served as untrue and a blatant attempt to misled the Court. It is stated that summons was served on 15/05/2023 via WhatsApp to the Appellant’s Mobile No. 0722-626803 obtained from the police abstract. The Process-server’s Affidavit and the police abstract are attached to the replying Affidavit. 2. The Respondent further states that the Appellant’s insurer was served with the hearing notices for 3rd July 2023 and 1st September 2023. The Respondent argues that it is evident therefore that the Appellant and his insurer were aware of the suit all along. The Respondent argues that the exparte judgment was therefore regular. 3. The respondent further states that the Appellant has failed to demonstrate that he has a defence that raises triable issues. It is concluded that if the Application is allowed it will prejudice the Respondent’s rights as it will delay the Respondent’s right to the enjoyment of the fruit of litigation. 4. In respect to the particulars of service, in the Affidavit of service sworn on 6th June, 2023, the process server, one Joel Kanuna ,stated that he obtained the Telephone No. 0722626803 belonging to Peter Kamau Njoroge (the Appellant) from the police Abstract. That he placed the call through the said number and was received by a person who identified himself by the Appellant’s name; that the person instructed him to send the documents through WhatsApp. He further stated that he sent he the documents and requested for acknowledgment, but the Appellant did not respond. Attached to the Affidavit of service are screenshots of the WhatsApp messages showing the documents were delivered and received as demonstrated by “two ticks” on the “WhatsApp” platform **Analysis and determination** 1. This being a first appeal, this Court is obliged to reconsider the material that was before the trial court and draw its own conclusions. The principle is settled in ***Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123.*** 2. The appeal, however, challenges the exercise of judicial discretion. An appellate court will not interfere with the discretion of a trial court merely because it might have reached a different conclusion. Interference is only warranted where the court below misdirected itself, considered irrelevant matters, failed to consider relevant matters, or reached a plainly wrong conclusion. (See ***Mbogo & another v Shah [1968] EA 93).*** 3. The court has considered the memorandum of appeal, the rival affidavits and submissions and the ruling of the trial court. The following issues arise for determination: a). whether the Appellant was duly served with summons to enter appearance b). whether the default judgment was regular; and c). if it was regular, whether the learned magistrate exercised the discretion judiciously. *whether the Appellant was duly served with summons to enter appearance* 22. **Order 5 rule 22C of the Civil Procedure Rules** permits service of summons through a mobile-enabled messaging application at the defendant’s last known, and used telephone number. Service is deemed effected when the sender receives a delivery receipt, and the authorized officer must file an affidavit of service attaching that receipt. The Rule recognizes electronic service, but it does not dispense with proof that the number used is sufficiently connected to the person to be served. 23. The process server’s affidavit of service sworn on 6th June 2023 stated that the process server obtained telephone number 0722-626803 from the police abstract; that he called that number; spoke to a person who identified himself as Peter Kamau Njoroge; was instructed by that person to forward the documents through WhatsApp; and thereafter sent the summons and pleadings. The attached screenshots showed that the messages were delivered, as indicated by two ticks. On its face, therefore, the affidavit set out both the source of the number and the steps by which the process server took to satisfy himself as to the recipient’s identity. 24. Where an affidavit of service is regular on its face, there is a qualified presumption in favour of the process server. The person disputing service bears the evidential burden of demonstrating that the return is incorrect. That is the principle set out in ***Miruka v Abok & another [1990] KLR 541*** and restated by the Court of ***Appeal in Dickson Daniel Karaba v John Ngata Kariuki & 2 others [2010] eKLR***. That presumption is however rebuttable, and a court must still examine the quality of the affidavit and the evidence tendered in answer to it. 25. The Appellant’s answer was that number 0722-626803 belonged to his former driver and that his own number was 0722-979336. Apart from that assertion, he placed no material before the trial court identifying the alleged driver, showing the driver’s ownership or use of the impugned number, indicating when the employment ceased. There was also no rebuttal to the process server’s account that the process server placed a call to cell phone No. 0722626803 and that it was answered by a person who identified himself by the name of the Appellant herein, and the same person directed him to send the documents through *WhatsApp*. Finally, the Appellant did not seek to cross-examine the process server as provided for under Order 5 rule 16 of the Civil Procedure Rules. 26. The legal burden of proving service remained upon the Respondent. It was discharged, prima facie, by the detailed affidavit of service and the attached delivery record. However, the evidential burden shifted to the Appellant to place before the court material capable of displacing that evidence. Shifting the evidential burden did not amount to an unlawful reversal of the burden of proof. A bare denial by the Appellant, without more, was insufficient in the circumstances of this case. 27. It is the finding of the court therefore that service through WhatsApp complied substantially with Order 5 rule 22C and that the Appellant was duly served. The fact that hearing notices were also sent to the insurer is not, by itself, a substitute for service of summons upon the Appellant and has not been treated as such in reaching this conclusion. *Whether the Judgment was regular* 28. The distinction between a regular and an irregular default judgment was authoritatively explained by the Court of Appeal in ***James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR***. A judgment entered without proper service is irregular and must be set aside as a matter of right. Where service was proper, the judgment is regular and the court has discretion to set it aside upon such terms as are just. 29. In view of the finding on service, the interlocutory judgment and the judgment delivered after formal proof were regular. The Appellant was therefore not entitled to have them set aside as of right. He had to establish a proper basis for the favourable exercise of discretion under Order 10 rule 11. 30. The Appellant moved the trial court on 30th April 2024, approximately one month after judgment was delivered on 27th March 2024. That delay was not inordinate. However, the trial court also had to consider the explanation for the default and whether the proposed defence disclosed a bona fide triable issue(s). 31. It is well settled that attaching a draft defence to the Application is not mandatory as the court can discern an intended defence from the supporting affidavit or other material properly placed before it. It follows that where there is no draft defence attached, the Applicant must place sufficient material before the court through an Affidavit for instance to demonstrate that the proposed defence is genuine and deserving of trial. 32. The Appellant herein did not attach a defence and the only proposed answer to the claim was the statement in paragraph 5 of the supporting affidavit that the Appellant’s driver was not to blame for the accident and that he was consequently not liable in damages. The Appellant did not state how the accident occurred; identify the person or vehicle allegedly at fault; traverse any pleaded particular of negligence; or disclose any factual basis upon which liability could realistically be contested. It was a general denial 33. It is trite law that a triable issue need not be one that will ultimately succeed; it need only raise a bona fide issue deserving investigation at a trial. Nonetheless, the court is not required to set aside a regular judgment upon a mere assertion that the Appellant’s driver was not to blame. On the material placed before the trial court, there was no identifiable issue that would have justified leave to defend the suit. The finding of the trial court was therefore consistent with the principles governing the exercise of discretion under Order 10 rule 11 of the civil procedure Rules. 36. I am consequently not satisfied that the learned magistrate misdirected himself, considered an irrelevant consideration, omitted a material consideration, or reached a conclusion that was plainly wrong. There is no proper basis that has been established for this Court to interfere with the trial court’s discretion. 37. In conclusion, the appeal lacks merit and is dismissed. The ruling and order of the trial court dismissing the Appellant’s application dated 30th April 2024 are hereby upheld. Dated, signed and deliverd at Isiolo , via *Microsoft Teams* , this 30th day of July 2026. S. Chirchir Judge . In the presence of : Roba Katelo- Court Assistant.