https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10337

Mutuku v Mwenda (Civil Suit E006 of 2025) [2026] KEHC 10337 (KLR) (Commercial and Tax) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10337 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Suit E006 of 2025 RC Rutto, J July 10, 2026 Between Peter Muuo Mutuku Appellant and Gladys Wairimu Mwenda Respondent Judgment 1.The Appellant being aggrieved by the Ruling of the trial court delivered on 6th December, 2024, in Milimani Commercial Magistrate’s Court Case No. E952 of 2023 preferred this appeal. The ruling is as a result of determination of an application dated 12th August, 2024, brought under Order 51, rule 1 and 15, Article 50, and 159(a) of the Constitution, and Section 1, 1A, 3 and 3A of the Civil Procedure Act. The Applicant in the application, the Appellant herein, was seeking leave for the firm of Pharis & Company Advocate to be on record; leave to file a defence out of time; stay of execution of the Judgment delivered on 5th July, 2024, pending the hearing and determination of the application, among others. 2.On 6th December, 2024, the trial court dismissed the application for lack of merit and reasoned that the Appellant was sufficiently served in accordance with the provisions of Order 5 of the Civil Procedure Rules, as amended in 2020. Further, the court held that the affidavit in return of service was adduced as evidence, the Appellant was sufficiently aware of the suit against him and had entered an appearance under the firm of Messers Lawrence Obonyo Legal Advocates. For these reasons, the court found that the Appellant's argument that he was not aware of the suit and therefore did not prosecute the matters could not stand. 3.In its amended Memorandum of Appeal dated 9th January, 2025, and amended on 21st July, 2025, the Appellant premises his appeal on the grounds that the learned magistrate erred in law and fact by:i.holding that service of pleadings and documents was properly effected by the Respondent;ii.denying the Appellant’s advocate leave to come on record;iii.condemning the Appellant unheard in breach of the principles of natural justice and fairness;iv.denying the Appellant, a right to a fair hearing, considering the circumstances;v.ignoring the Appellant’s explanation for not entering an appearance or filing the defence; andvi.finding the application lacked merit. 4.The Appellant consequently prays that the appeal be allowed; the ruling by the trial court of 6th December, 2024, be set aside with costs; unconditional leave to file its defence be granted; and the case be heard before a different Magistrate. 5.In the submissions dated 21st May, 2026, in support of the appeal, the Appellant contends that the trial court dismissed his application on a technical issue, particularly on service of pleadings, thereby violating his right to a fair hearing as guaranteed under Article 50 of the Constitution. He submits that judgment was entered against him, resulting in a substantial monetary liability, without affording him an opportunity to be heard. According to the Appellant, his failure to attend the hearing was attributable to his then advocates, the firm of Lawrence Obonyo Legal Advocates, who failed to notify him of the hearing date. He further argues that the right to a fair hearing is a non-derogable constitutional right and cannot be defeated by procedural technicalities. It is his position that the failure of his advocates to attend court did not extinguish his constitutional right to be heard. 6.The Appellant also maintains that he was not indolent, having given timely instructions to his advocates, and that any mistake or omission on the part of counsel should not be visited upon him. Although he acknowledges that his advocates were aware of the hearing date, he contends that he was never personally informed of it by the Respondent. The Appellant also challenges the trial court’s finding that service was proper and submits that the court failed to set aside the impugned judgment even where there was a clear prima facie defence. He buttresses that his only role was the sale of the motor vehicle in issue to the Respondent and that he was not privy to any dealings between the Respondent and the 2nd Defendant before the trial court (including the transfer of ownership and the management of the Uber business or the accounting of the profits thereof). 7.The Appellant further challenges the trial court's finding that the subsequently appointed advocates were not properly on record by virtue of Order 9, rule 9 of the Civil Procedure Rules. He submits that the purpose of Order 9, rule 9 is to safeguard the interests of the outgoing advocate, particularly with respect to costs, and that the outgoing advocates neither objected to the change of advocates nor claimed any unpaid costs. He therefore contends that the trial court ought not to have relied on non-compliance with that provision to dismiss his application. Finally, the Appellant argues that unless the appeal is allowed, he will suffer substantial prejudice. He accordingly prays that the appeal be allowed, the ex parte judgment delivered on 5th July, 2024, be set aside, and that MCCC/E0952/2023 be remitted to the trial court for hearing afresh. 8.In opposition to the appeal, the Respondent filed her submissions dated 29th April, 2026, contending that the appeal is without merit, is misconceived both in fact and law, and constitutes an attempt to bar the Respondent from enjoying the fruits of her valid and lawfully obtained judgment. On service of the pleadings, the Respondent submits that in response to the application before the lower court, she duly annexed an affidavit of service dated 24th March, 2023, which clearly demonstrates that service was duly effected upon the Appellant through his know Whatsapp number. She urges that effective service was completed in accordance with Order 5, rule 22C of the Civil Procedure Rules, as is also supplemented by the 2020 amendment vide Gazette 3137 Practice directions, which permits service by electronic means. In any event, the Respondent contends that the Appellant proceeded to instruct his advocate to represent him in the suit. Hence, he was well aware of the proceedings against him. 9.On whether the Appellant was condemned unheard, the Respondent submits that the Appellant was given an opportunity to be heard but chose not to utilize it. She contends that the Appellant was represented by his advocates Messers Lawrence Obonyo, who entered an appearance on behalf of the Appellant and participated in the preliminary stages of the suit, including directions, pre-trial conference and hearing of applications before the trial court. The Respondent urges that the Appellant and his advocate failed to attend the main hearing of the suit and subsequent mentions only to reappear almost two months after judgment had been delivered. 10.As regards the subsequent counsel's leave to come on records, the Respondent submits that the law governing change of advocates post-judgment, as explicitly provided in mandatory terms under Order 9, rule 9 of the Civil Procedure Rules, was not complied with by the Appellant’s proposed advocates, making the application incompetent. The Respondent also urges that the Appellant failed to annex a draft defence to its application for leave, and in the absence of a draft defence, the trial court had no basis upon which to exercise discretion in favour of the Appellant. 11.In conclusion, the Respondent submits that the alleged breakdown of the advocate–client relationship is unsupported by evidence, and even if true, would not warrant a pre-trial as it remained the Appellant's responsibility to at all times remain vigilant and informed on the progress of his case, including all the procedural steps. Further, it is her submission that the Appellant did not place before the lower court any evidence whatsoever to demonstrate attempts to contact or follow up with his advocate regarding the status of his matter. Principally, she argues that there are no correspondences, call logs, or any indication of diligence on his part. Analysis and Determination 12.This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Sielle vs Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and re-evaluate the evidence adduced in the Magistrate’s Court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified. In Sielle [Supra], it was observed that:“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 13.Guided by this principle, I have carefully considered the pleadings, evidence and written submissions filed by the rival parties in this matter. The only issue for determination is whether the Appellant’s application seeking to set aside the ex parte judgment and leave to defend the suit before the trial court was meritorious. Put differently, whether the Appellant was afforded a fair trial. 14.The grounds for setting aside an ex parte judgment are well settled. The court must be satisfied that:a.either the Defendant was not properly served with summons;b.or the Defendant failed to appear in court at the hearing due to sufficient cause. 15.Thus, the Appellant is required to satisfy the court that he had a good and sufficient cause to prevent him from appearing in Court, either through an advocate or in self-representation. 16.In this matter, the Appellant contends that the trial court condemned him to pay the judgment sum without being afforded a fair hearing. He argues that even though he had engaged an advocate to represent him in the matter, the advocate failed to inform him of the hearing date. He contends that the Respondent served its advocates with the hearing notice, but failed to serve him personally. The Respondent, on the other hand, urges that service was effectively effected upon the Appellant. A return of service filed was not contested. Thereafter, the Appellant appointed an advocate to represent him, the advocate entered an appearance and actively participated in the preliminary proceedings, but failed to attend the hearing. The Respondent also urges that the Appellant’s claim that his advocate failed to prosecute the matter or inform him of the hearing date is made without evidence. In the end, the Respondent contends that the Appellant was given a chance to be heard but did not utilize it. 17.From the record of appeal, it is evident that the Respondent’s advocates effected service upon the Appellant electronically through his registered WhatsApp number. To prove service, the Respondent filed an affidavit of service sworn on 24th March, 2023. The Appellant has not disputed either the mode of service or the contents of the affidavit in return of service. Accordingly, pursuant to Order 5, rule 22C of the Civil Procedure Rules, as read together with the Practice Directions issued under Gazette Notice No. 3137 of 2020, which authorize service by electronic means, this Court is satisfied that the Respondent duly served the relevant pleadings upon the Appellant. 18.Similarly, it is not in dispute that the Appellant was represented before the trial court. The record further shows that the Appellant’s advocate entered an appearance on 27th March, 2023, participated in the preliminary proceedings, and attended the pre-trial conference. In particular, on 28th March, 2023, learned counsel for the Appellant, Mr Oras, appeared before the court and further conceded to the Respondent’s application dated 20th February, 2023. The Appellant’s advocate also attended court on 12th July, 2023, and 9th October, 2023, when the matter was certified ready for hearing. A hearing date was fixed in the presence of counsel for the Appellant, and the parties were granted sixty-eight (68) days to comply with the pre-trial directions. However, neither the Appellant nor his advocate attended the hearing on 22nd February, 2024, nor filed a defence or witness statements. 19.Although the Appellant has contended that he was not served with a hearing notice. This contention is without merit because once the Appellant appointed an advocate who was properly on record, service upon, or notification to, that advocate constituted notice to the Appellant. The record clearly shows that the Appellant’s advocate was present when the hearing date was scheduled. In the circumstances, like the trial court, I find that the Appellant, through his advocate, had due notice of the hearing and cannot attribute his failure to attend court to any omission on the part of the Respondent or the court. 20.The Appellant further contended that the advocate-client relationship between him and his then advocates had broken down and that, as a consequence, he was not informed of the hearing date, leading to his failure to attend court. This assertion has been raised for the first time before this Court, and was not a ground in the application before the trial court dated 12th August, 2024, which culminated in the ruling impugned. A party is bound by its pleadings, and further, a party cannot raise new issues or grounds in appeal that were not canvassed at trial. This ground, therefore, cannot be relied upon in support of the appeal before this Court. In any event, assertion of a broken client-advocate relationship is unsupported by any evidence. No material has been placed before this Court to demonstrate the existence of such a breakdown or to show that it prevented the Appellant from participating in the proceedings. In the absence of any evidentiary basis for the allegation, the Court is unable to accept it as a sufficient ground for setting aside the judgment entered against the Appellant. 21.The totality of the foregoing analysis is that a party cannot successfully contend that they were denied the right to be heard where they deliberately fail to attend court despite having been afforded the opportunity to do so. In the present case, the Appellant was accorded every opportunity to participate in the proceedings but failed to avail himself of that opportunity. His belated attempt to attribute that failure to an alleged breakdown in the advocate-client relationship is a new issue raised in the appeal, is unsupported by any credible evidence, and is legally insufficient to displace the clear record demonstrating his participation in the proceedings and his subsequent failure to appear for the hearing. The rules of natural justice are intended to safeguard the right to a fair hearing, and cannot be invoked to shield a party from the consequences of deliberate inaction or a failure to prosecute their case or mount a defence. 22.The learned trial court was guided by judicial precedent and the law in arriving at its decision. Consequently, in agreement with the trial court, I find that the Appellant received sufficient notice of the pleadings against him, thereby allowing him to be heard in accordance with the requirements of procedural fairness. Moreover, setting aside an ex parte judgment is a matter of court discretion, as settled in Wachira Karani vs Bildad Wachira [2016] KEHC 6334 (KLR). Therefore, I find no basis to interfere with the trial court’s discretion. Being of the foregoing persuasion, I find that the appeal herein lacks merit. 23.In conclusion, the amended memorandum of appeal dated 9th January, 2025, and amended on 21st July, 2025, is hereby dismissed with costs to the Respondent. 24.It is so ordered. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 10TH DAY OF JULY, 2026.RHODA RUTTOJUDGECourt Assistant: WabwireMs. Chepkoyo holding brief for Mr. Mbugua Munyiri for the AppellantMs. Mwangi holding brief for Kevocco Ndegwa for the Respondent