[1] This Appeal emanates from the Ruling and Orders delivered in Oyugis SPMCC No. 55 of 2019: Maurice Idi v Hezron Angiro Ochuok. The appellant had been sued by the respondent in connection with a traffic road accident which occurred on or about 16th May 2019. The respondent, a lawful pillion passenger along Kanyadhiang–Nyangajo Obama Murran Road, was knocked down by Motor Vehicle Registration No. KAE 971Z, an Isuzu Pick-up. It was alleged that the driver of the said motor vehicle drove it so recklessly that he lost control of it. Consequently, the motor vehicle veered off the road and fatally knocked the respondent, causing him serious bodily injuries.
[2] The proceedings of the lower court annexed to the Record of Appeal show that, on 10th February 2020, interlocutory judgment was entered in favour of the respondent on the ground that the appellant had been served but failed to enter appearance or file a defence. Thereafter, the matter came up for mention on several occasions before proceeding to formal proof on 20th August 2020, culminating in the judgment of 15th October 2020. The lower court found the appellant liable to the respondent and awarded him general damages for pain and suffering in the sum of Kshs. 600,000/= together with interest and costs.
[3] Thereafter, on the 18th November 2021, the respondent filed the Notice of Motion dated 5th November 2021, seeking the setting aside of the proceedings and judgment delivered by the lower court on 15th October 2020 together with its consequential orders, contending that he was never served with Summons to Enter Appearance or notice of delivery of judgment. The appellant averred that he remained unaware of the existence of the suit until July 2021 when his insurers, Madison Insurance Co. Ltd, was served with pleadings in respect of a declaratory suit, namely Oyugis PMCC No. 144 of 2021: Maurice Idi v Madison Insurance Company Ltd.
[4] The appellant further contended, in his application, that he had been greatly prejudiced by being denied an opportunity to defend himself on merit and take part in the primary suit. He contended that he has a good defence to the respondent’s claim and that his application had been brought in good faith. He annexed a draft Defence to his Supporting Affidavit and added that no prejudice would be suffered by the respondent that could not be remedied by way of costs.
[5] In response to the appellant’s application, the respondent filed a Replying Affidavit sworn on 2nd November 2021, wherein he deponed that the pleadings in SPMCC Civil Case No. 55 of 2019 had been duly served upon the appellant on 21st October 2019 at his residence. The respondent averred that, despite such service, the appellant failed to enter appearance, leaving him with no option but to apply for judgment in default of appearance. He confirmed that he accordingly applied for interlocutory judgment, which was entered on 10th February 2020. Thereafter, the suit proceeded to formal proof; after which a final judgment was delivered on 15th October 2020.
[6] It was therefore the contention of the respondent that the decretal sum in Oyugis SPMCC Civil Case No. 55 of 2019, together with costs and interest remained due and payable; and that he continued to suffer economic stress as a result of the accident and needed to enjoy the fruits of his judgment. The respondent pointed out that, by virtue of Section 10 of the Motor Vehicle Third Party Risks Act, Cap 405 Laws of Kenya, Madison Insurance Co. Ltd. was under a mandatory obligation to satisfy the terms and conditions of the said judgment on behalf of the appellant, its insured. The respondent therefore deposed that it was absurd for the appellant to belatedly seek the intervention of the court by way of setting aside of the judgment of the lower court.
[7] Upon hearing the parties, the learned magistrate, in a Ruling delivered on 14th April 2022, dismissed the appellant’s application. The court was satisfied that the appellant had been duly served with the Plaint, Verifying Affidavit, Witness Statement, List of Documents, and List of Witnesses, as evidenced by the Affidavit of Service sworn on 14th January 2020 by Ms. Hellen Adoyo Kuke, Advocate and filed on 6th February 2020. The court held that service had been properly effected in accordance with the Civil Procedure Rules. The lower court rejected the appellant’s reliance on Articles 50 and 159 of the Constitution, observing that while courts are enjoined to dispense justice without undue regard to technicalities, those provisions should not be invoked to defeat the rights of other litigants or to sanitize indolence and thereby deny justice to a diligent party.
[8] Aggrieved by the decision of the lower court, the appellant lodged a Memorandum of Appeal dated 8th May 2022 setting forth the following grounds of appeal:
[a] That the learned magistrate erred in law and fact by dismissing his Notice of Motion dated 5th November 2021, without appreciating that he had not been served/properly served with Summons to Enter Appearance and as a result, the default judgment was irregular and ought to be set aside ex debito justiciae.
[b] That the learned trial magistrate erred in law and fact by failing to appreciate that an affidavit of service alone is not evidence of service of process unless the same meets the threshold stipulated in the express and mandatory provisions of Order 5 Rule 15 of the Civil Procedure Rules.
[c] The learned magistrate erred in law and in fact, in dismissing the appellant’s Notice of Motion dated 5th November, 2021, whose effect is to defeat right to fair hearing as underpinned under Article 50 of the Constitution of Kenya.
[d] The learned magistrate erred in law and fact by failing to appreciate that even if there was a regular judgment on record, the power to set aside ex parte judgment entered in default of pleadings is discretionary and such discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, and in turn facilitate the determination of a dispute on merits.
[e] The learned magistrate erred in law and fact by failing to analyze the evidence on record, and thereby arriving at a wrong decision to wit; that the judgment on record was procedurally and regularly entered, thereby dismissing his application without appreciating that evidence confirming the contrary was on record.
[f] The learned magistrate erred in law and fact by failing to appreciate that the appellant had discharged the burden of proof placed on it in contemplation of the express and mandatory provisions of Sections 107, 108 and 109 of the Evidence Act by placing concrete evidence in support of its Notice of Motion dated 5th November 2021.
[g] The learned magistrate erred in law and fact by failing to appreciate the principles for setting aside interlocutory judgment, namely, not to shut out a party from being heard even in the case of an apparent mistake; and the need for determinations to be on merits.
[h] The learned trial magistrate erred in law and fact by failing to appreciate that the only available option in the circumstances was to allow the appellant’s Notice of Motion dated 5th November 2021 even on such terms as the court would have found necessary for purposes of serving justice to both parties.
[9] In the premises, the appellant prayed that his appeal be allowed; the Ruling delivered on 14th April 2022 by the lower court be set aside; that his application dated 5th November 2021 be allowed; and that the costs of this Appeal be awarded to him.
[10] The appeal was urged by way of written submissions, pursuant to the directions given herein on 21st January 2025. The appellant relied on his written submissions dated 23rd February 2025. He maintained his posturing that he was not served with Summons to Enter Appearance in Oyugis SPMCC Civil Case No. 55 of 2019; and that he only became aware of the matter when his insurer was served with pleadings in Oyugis SPMCC No. 144 of 2021, the declaratory suit. He argued that neither he nor his insurer had been served with summons or pleadings in the primary suit. Consequently, the ex parte judgment entered therein was irregular and ought to have been set aside ex debito justiciae to allow the appellant, through his insurer, an opportunity to defend the suit for a determination on its merits.
[11] The appellant challenged the trial court’s reliance on an affidavit of service, contending that the said affidavit was not traceable in the court file when perused by his advocates. The appellant further submitted that, in its Ruling, the lower court did not disclose the name of the deponent; and only referring to the law firm said to have filed it. The appellant further argued that there was no evidence of service of Notice of Entry of Judgment.
[12] Lastly, the appellant urged that, pursuant to Article 159(2)(d) of the Constitution, the trial court ought to have prioritized substantive justice over procedural technicalities, and should not have presumed service merely from the presence of an affidavit on record.
[13] The respondent opposed the Appeal. He relied on his written submissions dated 4th March 2025. In his view, the trial court properly exercised its discretion in declining to set aside the interlocutory judgment. He argued that the appellant had been duly served with summons and pleadings on 21st October 2019, as evidenced by an affidavit of service which was never challenged. The respondent contended that the requirements for setting aside an ex parte judgment were not met, since the appellant had neither shown lack of service nor sufficient cause for non-appearance.
[14] In the respondent’s submission, the trial court’s discretion was exercised judiciously and in line with established principles, and that an appellate court should not interfere with such discretion absent proof of misdirection, misapprehension of facts, or arbitrary exercise. The respondent stressed that the appellant’s conduct reflected indolence, having delayed for nearly two years before seeking to have the ex parte judgment set aside; even after its advocates had entered appearance in the declaratory suit.
[15] The respondent further submitted that that allowing the appeal would greatly prejudice him, noting that the injuries complained of were suffered by him in 2019; he obtained judgment in 2020, and has since been deprived of the fruits of that judgment. Accordingly, the respondent prayed that the appeal be dismissed with costs.
[16] Thus, the main issue before the lower court was whether the appellant had put forward a good case to warrant the setting aside of the default judgment. Allegations were made as to non-service of the Statutory Notice, the Summons to Enter Appearance and the 10-day Notice of Entry of Judgment. Accordingly, the only issue for determination in this appeal is whether the learned magistrate judiciously exercised her discretion in the circumstances.
[17] It is now trite that an appellate court ought not to interfere with the discretion of the lower court unless it is absolutely necessary. In United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E.A 898, it was held:
“The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.”
[18] The same principles apply to appeals from subordinate courts to the High Court. The Court of Appeal reiterated the principles in CMC Holdings Ltd v James Mumo Nzioki [2004] KECA 143 (KLR), the Court of Appeal held:
“We are fully aware that in an application before a court to set aside ex parte judgment, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously. On appeal from that decision, the Appellate Court would not interfere with the exercise of that discretion unless the exercise of the same discretion was wrong in principle or that the Court did act perversely on the facts. This is trite law and there are many decided cases in support of the proposition…”
[19] The basic ground raised by the appellant in support of his application for setting aside the ex parte judgment entered against him by the lower court was lack of service of Summons to Enter Appearance and the pleadings filed by the respondent in the primary suit. Service of Summons to Enter Appearance is provided for in Order 5 Rule 5 of the Civil Procedure Rules as follows:
(1) Where the court has issued summons to a defendant, the summons may be delivered for service—
(a) to any person for the time being duly authorized by the court;
(b) to an advocate, or advocate’s clerk approved by the court;
(c) to any subordinate court having jurisdiction in the place where the defendant resides;
(d) to a police officer appointed under the National Police Service Act (Cap. 84); or
(e) to a licensed courier service provider approved by the court.
(2) A court to which a summons is sent under subrule (1)(c) shall upon receipt thereof proceed as if it had been issued by such court, and shall then return the summons to the court of issue, together with the record of any of its proceedings with regard thereto.
(3) No objection may be made to the service of a summons on the grounds that the person who served the summons either was not authorized so to do or that he exceeded or failed to comply with his authority in any way.
[20] Further to the foregoing, Order 5 Rule 15 provides:
(1) The serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require.
(2) Any person who knowingly makes a false affidavit of service shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or one month’s imprisonment or both.
[21] Hence, Order 5 Rule 5 prescribes the categories of persons authorized to effect service. They include court officers, advocates or their duly approved clerks, subordinate courts with jurisdiction, designated police officers, and licensed courier service providers. Complementing this, Order 5 Rule 15 requires that in every case where summons has been served, the serving officer must swear an affidavit of service detailing the manner, time, and circumstances of service, including identification of the recipient.
[22] Upon examining the record of the lower court, it is manifest that an affidavit of service was filed before the lower court in compliance with Order 5 Rules 5 and 15, Civil Procedure Rules. The affidavit was sworn on 14th January 2020 by Ms. Hellen Adoyo Kuke, Advocate. She deposed that she received Summons to Enter Appearance dated 11th November 2019, Plaint, Verifying Affidavit, Statement, List of Documents and List of Witnesses for service; and that she served the same on the appellant at his home at Kanyadhiang’ in Homa Bay County. The further deposed that the appellant personally accepted service.
[23] There is no dispute that Ms. Kuke, as an Advocate, falls within the category of process servers set out in Order 5 Rule 5(1) of the Civil Procedure Rules. She averred that the appellant accepted service and signed by signing and dating the reverse side of the Summons dated 11th September 2019. A copy thereof was annexed to the affidavit. It confirms service in accordance with Order 5 Rules 5 and 15 of the Civil Procedure Rules.
[24] Moreover, Order 10 Rule (2) of the Civil Procedure Rules provides:
Where any defendant fails to appear and the plaintiff wishes to proceed against such defendant, he shall file an affidavit of service of summons unless the summons has been served by the process server appointed by the Court.
[25] In the circumstances, there was sufficient justification for the ex parte proceedings; and therefore the impugned judgment was a regular judgment. In the case James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) the Court of Appeal addressed the distinction between regular and irregular judgments and held:
“We shall first address the ground of appeal that faults the learned judge for setting aside the default judgment and consequential orders in the circumstances of the case. From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. 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. See Mbogo & Another v. Shah (supra), Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v. Kubende [1986] KLR 492 and CMC Holdings v. Nzioki [2004] 1 KLR 173).
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. (See Onyango Oloo v. Attorney General [1986-1989] EA 456). The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711:
“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
The approach of the courts where an irregular default judgment has been entered is demonstrated the following cases. In Frigonken Ltd v. Value Pak Food Ltd, HCCC NO. 424 of 2010, the High Court expressed itself thus:
“If there is no proper or any service of summons to enter appearance to the suit, the resulting default judgment is an irregular judgment liable to be set aside by the court ex debito justitiae. Such a judgment is not set a side in the exercise of discretion but as a matter of judicial duty in order to uphold the integrity of the judicial process.”
[26] The power to set aside an ex parte judgment is discretionary and is intended to avert injustice or hardship arising from accident, inadvertence, or excusable mistake or error. However, as has often been said, it is not meant to aid a litigant who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. (see Shah v. Mbogo & another [1967] EA 116). It is therefore significant that this appeal involves an accident that occurred on 16th May 2019 and the impugned judgment was delivered on 15th October 2020. The respondent demonstrated that it took four months from the date of entering appearance in the declaratory suit; and 2 years from the date the appellant was served with Summons to Enter Appearance in the primary suit.
[27] I note that the appellant also took issue with the fact that he was not served with Notice of Entry of Judgment. This was not necessary as the matter is yet to proceed to the execution stage. Order 22 Rule 6 of the Civil Procedure Rules is explicit enough in its proviso. It states:
“Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to such court or to the proper officer thereof; and applications under this rule shall be in accordance with Form No. 14 of Appendix A:
Provided that, where judgment in default of appearance or defence has been entered against a defendant, no execution by payment, attachment or eviction shall issue unless not less than ten days notice of the entry of judgment has been given to him either at his address for service or served on him personally, and a copy of that notice shall be filed with the first application for execution.
[28] Consequently, I find no merit in the Appeal. The same is hereby dismissed with costs.
It is so ordered.
DATED AND SIGNED THIS 29TH SEPTEMBER 2025
……………….
OLGA SEWE
JUDGE
DATED, COUNTERSIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF OCTOBER 2025
……………………….
TERESA A. ODERA
JUDGE
[2] The proceedings of the lower court annexed to the Record of Appeal show that, on 10th February 2020, interlocutory judgment was entered in favour of the respondent on the ground that the appellant had been served but failed to enter appearance or file a defence. Thereafter, the matter came up for mention on several occasions before proceeding to formal proof on 20th August 2020, culminating in the judgment of 15th October 2020. The lower court found the appellant liable to the respondent and awarded him general damages for pain and suffering in the sum of Kshs. 600,000/= together with interest and costs.
[3] Thereafter, on the 18th November 2021, the respondent filed the Notice of Motion dated 5th November 2021, seeking the setting aside of the proceedings and judgment delivered by the lower court on 15th October 2020 together with its consequential orders, contending that he was never served with Summons to Enter Appearance or notice of delivery of judgment. The appellant averred that he remained unaware of the existence of the suit until July 2021 when his insurers, Madison Insurance Co. Ltd, was served with pleadings in respect of a declaratory suit, namely Oyugis PMCC No. 144 of 2021: Maurice Idi v Madison Insurance Company Ltd.
[4] The appellant further contended, in his application, that he had been greatly prejudiced by being denied an opportunity to defend himself on merit and take part in the primary suit. He contended that he has a good defence to the respondent’s claim and that his application had been brought in good faith. He annexed a draft Defence to his Supporting Affidavit and added that no prejudice would be suffered by the respondent that could not be remedied by way of costs.
[5] In response to the appellant’s application, the respondent filed a Replying Affidavit sworn on 2nd November 2021, wherein he deponed that the pleadings in SPMCC Civil Case No. 55 of 2019 had been duly served upon the appellant on 21st October 2019 at his residence. The respondent averred that, despite such service, the appellant failed to enter appearance, leaving him with no option but to apply for judgment in default of appearance. He confirmed that he accordingly applied for interlocutory judgment, which was entered on 10th February 2020. Thereafter, the suit proceeded to formal proof; after which a final judgment was delivered on 15th October 2020.
[6] It was therefore the contention of the respondent that the decretal sum in Oyugis SPMCC Civil Case No. 55 of 2019, together with costs and interest remained due and payable; and that he continued to suffer economic stress as a result of the accident and needed to enjoy the fruits of his judgment. The respondent pointed out that, by virtue of Section 10 of the Motor Vehicle Third Party Risks Act, Cap 405 Laws of Kenya, Madison Insurance Co. Ltd. was under a mandatory obligation to satisfy the terms and conditions of the said judgment on behalf of the appellant, its insured. The respondent therefore deposed that it was absurd for the appellant to belatedly seek the intervention of the court by way of setting aside of the judgment of the lower court.
[7] Upon hearing the parties, the learned magistrate, in a Ruling delivered on 14th April 2022, dismissed the appellant’s application. The court was satisfied that the appellant had been duly served with the Plaint, Verifying Affidavit, Witness Statement, List of Documents, and List of Witnesses, as evidenced by the Affidavit of Service sworn on 14th January 2020 by Ms. Hellen Adoyo Kuke, Advocate and filed on 6th February 2020. The court held that service had been properly effected in accordance with the Civil Procedure Rules. The lower court rejected the appellant’s reliance on Articles 50 and 159 of the Constitution, observing that while courts are enjoined to dispense justice without undue regard to technicalities, those provisions should not be invoked to defeat the rights of other litigants or to sanitize indolence and thereby deny justice to a diligent party.
[8] Aggrieved by the decision of the lower court, the appellant lodged a Memorandum of Appeal dated 8th May 2022 setting forth the following grounds of appeal:
[a] That the learned magistrate erred in law and fact by dismissing his Notice of Motion dated 5th November 2021, without appreciating that he had not been served/properly served with Summons to Enter Appearance and as a result, the default judgment was irregular and ought to be set aside ex debito justiciae.
[b] That the learned trial magistrate erred in law and fact by failing to appreciate that an affidavit of service alone is not evidence of service of process unless the same meets the threshold stipulated in the express and mandatory provisions of Order 5 Rule 15 of the Civil Procedure Rules.
[c] The learned magistrate erred in law and in fact, in dismissing the appellant’s Notice of Motion dated 5th November, 2021, whose effect is to defeat right to fair hearing as underpinned under Article 50 of the Constitution of Kenya.
[d] The learned magistrate erred in law and fact by failing to appreciate that even if there was a regular judgment on record, the power to set aside ex parte judgment entered in default of pleadings is discretionary and such discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, and in turn facilitate the determination of a dispute on merits.
[e] The learned magistrate erred in law and fact by failing to analyze the evidence on record, and thereby arriving at a wrong decision to wit; that the judgment on record was procedurally and regularly entered, thereby dismissing his application without appreciating that evidence confirming the contrary was on record.
[f] The learned magistrate erred in law and fact by failing to appreciate that the appellant had discharged the burden of proof placed on it in contemplation of the express and mandatory provisions of Sections 107, 108 and 109 of the Evidence Act by placing concrete evidence in support of its Notice of Motion dated 5th November 2021.
[g] The learned magistrate erred in law and fact by failing to appreciate the principles for setting aside interlocutory judgment, namely, not to shut out a party from being heard even in the case of an apparent mistake; and the need for determinations to be on merits.
[h] The learned trial magistrate erred in law and fact by failing to appreciate that the only available option in the circumstances was to allow the appellant’s Notice of Motion dated 5th November 2021 even on such terms as the court would have found necessary for purposes of serving justice to both parties.
[9] In the premises, the appellant prayed that his appeal be allowed; the Ruling delivered on 14th April 2022 by the lower court be set aside; that his application dated 5th November 2021 be allowed; and that the costs of this Appeal be awarded to him.
[10] The appeal was urged by way of written submissions, pursuant to the directions given herein on 21st January 2025. The appellant relied on his written submissions dated 23rd February 2025. He maintained his posturing that he was not served with Summons to Enter Appearance in Oyugis SPMCC Civil Case No. 55 of 2019; and that he only became aware of the matter when his insurer was served with pleadings in Oyugis SPMCC No. 144 of 2021, the declaratory suit. He argued that neither he nor his insurer had been served with summons or pleadings in the primary suit. Consequently, the ex parte judgment entered therein was irregular and ought to have been set aside ex debito justiciae to allow the appellant, through his insurer, an opportunity to defend the suit for a determination on its merits.
[11] The appellant challenged the trial court’s reliance on an affidavit of service, contending that the said affidavit was not traceable in the court file when perused by his advocates. The appellant further submitted that, in its Ruling, the lower court did not disclose the name of the deponent; and only referring to the law firm said to have filed it. The appellant further argued that there was no evidence of service of Notice of Entry of Judgment.
[12] Lastly, the appellant urged that, pursuant to Article 159(2)(d) of the Constitution, the trial court ought to have prioritized substantive justice over procedural technicalities, and should not have presumed service merely from the presence of an affidavit on record.
[13] The respondent opposed the Appeal. He relied on his written submissions dated 4th March 2025. In his view, the trial court properly exercised its discretion in declining to set aside the interlocutory judgment. He argued that the appellant had been duly served with summons and pleadings on 21st October 2019, as evidenced by an affidavit of service which was never challenged. The respondent contended that the requirements for setting aside an ex parte judgment were not met, since the appellant had neither shown lack of service nor sufficient cause for non-appearance.
[14] In the respondent’s submission, the trial court’s discretion was exercised judiciously and in line with established principles, and that an appellate court should not interfere with such discretion absent proof of misdirection, misapprehension of facts, or arbitrary exercise. The respondent stressed that the appellant’s conduct reflected indolence, having delayed for nearly two years before seeking to have the ex parte judgment set aside; even after its advocates had entered appearance in the declaratory suit.
[15] The respondent further submitted that that allowing the appeal would greatly prejudice him, noting that the injuries complained of were suffered by him in 2019; he obtained judgment in 2020, and has since been deprived of the fruits of that judgment. Accordingly, the respondent prayed that the appeal be dismissed with costs.
[16] Thus, the main issue before the lower court was whether the appellant had put forward a good case to warrant the setting aside of the default judgment. Allegations were made as to non-service of the Statutory Notice, the Summons to Enter Appearance and the 10-day Notice of Entry of Judgment. Accordingly, the only issue for determination in this appeal is whether the learned magistrate judiciously exercised her discretion in the circumstances.
[17] It is now trite that an appellate court ought not to interfere with the discretion of the lower court unless it is absolutely necessary. In United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E.A 898, it was held:
“The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.”
[18] The same principles apply to appeals from subordinate courts to the High Court. The Court of Appeal reiterated the principles in CMC Holdings Ltd v James Mumo Nzioki [2004] KECA 143 (KLR), the Court of Appeal held:
“We are fully aware that in an application before a court to set aside ex parte judgment, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously. On appeal from that decision, the Appellate Court would not interfere with the exercise of that discretion unless the exercise of the same discretion was wrong in principle or that the Court did act perversely on the facts. This is trite law and there are many decided cases in support of the proposition…”
[19] The basic ground raised by the appellant in support of his application for setting aside the ex parte judgment entered against him by the lower court was lack of service of Summons to Enter Appearance and the pleadings filed by the respondent in the primary suit. Service of Summons to Enter Appearance is provided for in Order 5 Rule 5 of the Civil Procedure Rules as follows:
(1) Where the court has issued summons to a defendant, the summons may be delivered for service—
(a) to any person for the time being duly authorized by the court;
(b) to an advocate, or advocate’s clerk approved by the court;
(c) to any subordinate court having jurisdiction in the place where the defendant resides;
(d) to a police officer appointed under the National Police Service Act (Cap. 84); or
(e) to a licensed courier service provider approved by the court.
(2) A court to which a summons is sent under subrule (1)(c) shall upon receipt thereof proceed as if it had been issued by such court, and shall then return the summons to the court of issue, together with the record of any of its proceedings with regard thereto.
(3) No objection may be made to the service of a summons on the grounds that the person who served the summons either was not authorized so to do or that he exceeded or failed to comply with his authority in any way.
[20] Further to the foregoing, Order 5 Rule 15 provides:
(1) The serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require.
(2) Any person who knowingly makes a false affidavit of service shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or one month’s imprisonment or both.
[21] Hence, Order 5 Rule 5 prescribes the categories of persons authorized to effect service. They include court officers, advocates or their duly approved clerks, subordinate courts with jurisdiction, designated police officers, and licensed courier service providers. Complementing this, Order 5 Rule 15 requires that in every case where summons has been served, the serving officer must swear an affidavit of service detailing the manner, time, and circumstances of service, including identification of the recipient.
[22] Upon examining the record of the lower court, it is manifest that an affidavit of service was filed before the lower court in compliance with Order 5 Rules 5 and 15, Civil Procedure Rules. The affidavit was sworn on 14th January 2020 by Ms. Hellen Adoyo Kuke, Advocate. She deposed that she received Summons to Enter Appearance dated 11th November 2019, Plaint, Verifying Affidavit, Statement, List of Documents and List of Witnesses for service; and that she served the same on the appellant at his home at Kanyadhiang’ in Homa Bay County. The further deposed that the appellant personally accepted service.
[23] There is no dispute that Ms. Kuke, as an Advocate, falls within the category of process servers set out in Order 5 Rule 5(1) of the Civil Procedure Rules. She averred that the appellant accepted service and signed by signing and dating the reverse side of the Summons dated 11th September 2019. A copy thereof was annexed to the affidavit. It confirms service in accordance with Order 5 Rules 5 and 15 of the Civil Procedure Rules.
[24] Moreover, Order 10 Rule (2) of the Civil Procedure Rules provides:
Where any defendant fails to appear and the plaintiff wishes to proceed against such defendant, he shall file an affidavit of service of summons unless the summons has been served by the process server appointed by the Court.
[25] In the circumstances, there was sufficient justification for the ex parte proceedings; and therefore the impugned judgment was a regular judgment. In the case James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) the Court of Appeal addressed the distinction between regular and irregular judgments and held:
“We shall first address the ground of appeal that faults the learned judge for setting aside the default judgment and consequential orders in the circumstances of the case. From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. 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. See Mbogo & Another v. Shah (supra), Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v. Kubende [1986] KLR 492 and CMC Holdings v. Nzioki [2004] 1 KLR 173).
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. (See Onyango Oloo v. Attorney General [1986-1989] EA 456). The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711:
“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
The approach of the courts where an irregular default judgment has been entered is demonstrated the following cases. In Frigonken Ltd v. Value Pak Food Ltd, HCCC NO. 424 of 2010, the High Court expressed itself thus:
“If there is no proper or any service of summons to enter appearance to the suit, the resulting default judgment is an irregular judgment liable to be set aside by the court ex debito justitiae. Such a judgment is not set a side in the exercise of discretion but as a matter of judicial duty in order to uphold the integrity of the judicial process.”
[26] The power to set aside an ex parte judgment is discretionary and is intended to avert injustice or hardship arising from accident, inadvertence, or excusable mistake or error. However, as has often been said, it is not meant to aid a litigant who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. (see Shah v. Mbogo & another [1967] EA 116). It is therefore significant that this appeal involves an accident that occurred on 16th May 2019 and the impugned judgment was delivered on 15th October 2020. The respondent demonstrated that it took four months from the date of entering appearance in the declaratory suit; and 2 years from the date the appellant was served with Summons to Enter Appearance in the primary suit.
[27] I note that the appellant also took issue with the fact that he was not served with Notice of Entry of Judgment. This was not necessary as the matter is yet to proceed to the execution stage. Order 22 Rule 6 of the Civil Procedure Rules is explicit enough in its proviso. It states:
“Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to such court or to the proper officer thereof; and applications under this rule shall be in accordance with Form No. 14 of Appendix A:
Provided that, where judgment in default of appearance or defence has been entered against a defendant, no execution by payment, attachment or eviction shall issue unless not less than ten days notice of the entry of judgment has been given to him either at his address for service or served on him personally, and a copy of that notice shall be filed with the first application for execution.
[28] Consequently, I find no merit in the Appeal. The same is hereby dismissed with costs.
It is so ordered.
DATED AND SIGNED THIS 29TH SEPTEMBER 2025
……………….
OLGA SEWE
JUDGE
DATED, COUNTERSIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF OCTOBER 2025
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TERESA A. ODERA
JUDGE