[1] This is an interlocutory appeal from the Ruling and Orders delivered in Homa Bay Chief Magistrate’s Civil Case No. 15 of 2020: Neeta Permanent Builders Co. Ltd v Chief Officer, Ministry of Water, Homa Bay County Government & another. In the lower court, the appellants had been sued by the respondent in connection with a tender for the rehabilitation of Ranen Pan in West Karachuonyo Ward for which the respondent had been contracted. The respondent averred before the lower court that, while it performed the contracted services to completion, the appellants did not make full payment as agreed. Accordingly, the respondent prayed for an order directing the appellants to pay it the outstanding sum of Kshs. 1,865,053/= together with interest and costs.
[2] The record of the lower court shows that Summons to Enter Appearance was duly served on the appellants; and that upon failure by them to enter appearance or file defence, the respondent filed an application dated 9 th December 2020 seeking summary judgment against the appellants. That application was also duly served but was not resisted by the appellants. It was therefore allowed ex parte on 17 th February 2021. While the respondent was endeavouring to have the appellants compelled to pay the decretal sum, the appellants filed the Notice of Motion dated 28 th March 2023 for the setting aside of the judgment and the resultant decree entered against them and for leave to defend the suit. The application yielded the impugned Ruling dated 31 st March 2023 by which the lower court declined the application to set aside the default judgment.
[3] Being aggrieved by the Ruling and Order of the learned magistrate, the appellants filed the instant appeal on the following grounds:
[a] The learned magistrate erred in fact and law when she dismissed the application thereby condemning the appellants without a hearing and without taking into account the fact that the appellant had not been served with Summons to Enter Appearance and the Plaint.
[b] The learned magistrate erred in fact and in law when she held that the appellants were under duty to prove that they had not been served while it was incumbent upon the respondent, who had alleged proper service on the appellants to prove the same, rather than expecting of the appellants to prove the negative.
[c] The learned magistrate erred in fact and law when she decided the application on the basis of the absence of a draft defence as opposed to the reasons which the appellants had offered for failing to enter appearance.
[d] The learned magistrate erred in law and fact when she wrongfully exercised her discretion by refusing to set aside the ex parte judgment; in the process taking away the appellants’ constitutional right to be heard.
[e] The learned magistrate failed to appreciate that suits ought to be heard and decided on their respective merits and not on technicalities.
[f] The learned magistrate erred in fact and in law when she failed to take into account the provisions of Order 36 Rule 1 of the Civil Procedure Rules, which prohibit an application and entry of Summary Judgment against the Government.
[g] The learned magistrate erred in law when she failed to take into account the fact that by refusing to set aside the ex parte judgment, she in effect turned a blind eye to the appellants’ right to a hearing.
[4] In the premises, the appellants prayed that the appeal be allowed and the Ruling and Order issued by the subordinate court be set aside. They also prayed that an order be made setting aside the ex parte judgment, decree and other consequential orders in the lower court suit; and that they be granted leave to file a Statement of Defence for hearing and determination on merit.
[5] The appeal was urged by way of written submissions, pursuant to the directions given herein on 8 th July 2025. The appellants relied on their written submissions dated 31 st October 2025. They proposed a single issue for determination in this appeal, namely, whether service was properly effected. The appellants submitted at length on the right to be heard and whether or not the ex parte judgment was a regular one. In their submission, service was not properly effected on them and therefore the default judgment was irregular. Accordingly, they submitted that the default judgment ought to have been set aside ex debito justiciae . The appellants relied on Article 50(1) of the Constitution and several authorities, including Martha Wangari Karua v I E B C, Nyeri Civil Appeal No. 1 of 2017 and James Kanyiita Nderitu & another v Marios Philotas Ghias & another [2016] KECA 470 (KLR) in urging the Court to allow their appeal.
[6] The respondent on the other hand proposed for determination the question whether the appellants’ application dated 5 th April 2023 meets the threshold for setting aside judgment. The respondent relied on Shah v Mbogo & another [1967] EA, Patel v E A Cargo Handling Services Ltd [1974] EA 75 and Mohamed & another v Shoka [1990] KLR 463, among other authorities, to buttress their submission that no useful purpose would be served by setting aside the default judgment where, as there is no defence on the merits. It prayed for the dismissal of the appeal with costs.
[7] 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. According to the appellants, service was not effected and therefore the learned magistrate ought to have set aside the default judgment ex debito justiciae . In the premises, the only issue for determination in this appeal is whether the learned magistrate judiciously exercised her discretion in the circumstances.
[8] It is now trite that an appellate court ought not to interfere with the discretion of the lower court unless it is absolutely necessary. I n 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.”
[9] 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…”
[10] Service on the Government is provided for in Order 5 Rule 9 as follows:
The provisions of this Order shall have effect subject to section 13 of the Government Proceedings Act (Cap. 40), which provides for the service of documents on the Government for the purpose of or in connection with civil proceedings by or against the Government.
No proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing in the prescribed form have been served on the Government in relation to those proceedings.
(2) The notice to be served under this section shall be in the form prescribed in the Third Schedule to this Act and shall include the following particulars—
(a) the full names, description and place of residence of the proposed plaintiff;
(b) the date upon which the cause of action is alleged to have accrued;
(c) the name of the Government department alleged to be responsible and the full names of any servant or agent whom it is intended to join as a defendant;
(d) a concise statement of the facts on which it is alleged that the liability of the Government and of any such servant or agent has arisen;
(e) the relief that will be claimed and, so far as may be practicable, the value of the subject matter of the intended proceedings or the amount which it is intended to claim.
(3) The provisions of this section shall not apply to such part of any proceedings as relates to a claim for relief in respect of which the court may, by virtue of proviso (i) to section 16 (1), make an order declaratory of the right of the parties in lieu of an injunction.
[11] Further to the foregoing, Order 10 Rule 8 of the Civil Procedure Rules states that:
No judgment in default of appearance or pleading may be entered against the Government without the leave of the court and any application for leave shall be served not less than seven days before the return day.
[12] The record of the lower court shows that before the default judgment was entered, leave of the court was sought and granted on 8 th December 2020. Similarly, before entering the default judgment against the appellants, the lower court was satisfied as to service, noting that the Chief Officer (the 1 st appellant) was not sued in his personal capacity but as an officer and employee of the 2 nd appellant, the County Government of Homa Bay.
[13] In the circumstances, there was sufficient justification for the ex parte proceedings; and therefore the impugned judgment was, for all intents and purposes, 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 .”
[14] 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). There being no demonstration that the learned magistrate misdirected herself in law or that she misapprehended the facts, I find no justification for interfering with the exercise of discretion in this instance.
[15] Consequently, I find no merit in the appeal. The same is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11 TH DAY OF JUNE 2026
[2] The record of the lower court shows that Summons to Enter Appearance was duly served on the appellants; and that upon failure by them to enter appearance or file defence, the respondent filed an application dated 9 th December 2020 seeking summary judgment against the appellants. That application was also duly served but was not resisted by the appellants. It was therefore allowed ex parte on 17 th February 2021. While the respondent was endeavouring to have the appellants compelled to pay the decretal sum, the appellants filed the Notice of Motion dated 28 th March 2023 for the setting aside of the judgment and the resultant decree entered against them and for leave to defend the suit. The application yielded the impugned Ruling dated 31 st March 2023 by which the lower court declined the application to set aside the default judgment.
[3] Being aggrieved by the Ruling and Order of the learned magistrate, the appellants filed the instant appeal on the following grounds:
[a] The learned magistrate erred in fact and law when she dismissed the application thereby condemning the appellants without a hearing and without taking into account the fact that the appellant had not been served with Summons to Enter Appearance and the Plaint.
[b] The learned magistrate erred in fact and in law when she held that the appellants were under duty to prove that they had not been served while it was incumbent upon the respondent, who had alleged proper service on the appellants to prove the same, rather than expecting of the appellants to prove the negative.
[c] The learned magistrate erred in fact and law when she decided the application on the basis of the absence of a draft defence as opposed to the reasons which the appellants had offered for failing to enter appearance.
[d] The learned magistrate erred in law and fact when she wrongfully exercised her discretion by refusing to set aside the ex parte judgment; in the process taking away the appellants’ constitutional right to be heard.
[e] The learned magistrate failed to appreciate that suits ought to be heard and decided on their respective merits and not on technicalities.
[f] The learned magistrate erred in fact and in law when she failed to take into account the provisions of Order 36 Rule 1 of the Civil Procedure Rules, which prohibit an application and entry of Summary Judgment against the Government.
[g] The learned magistrate erred in law when she failed to take into account the fact that by refusing to set aside the ex parte judgment, she in effect turned a blind eye to the appellants’ right to a hearing.
[4] In the premises, the appellants prayed that the appeal be allowed and the Ruling and Order issued by the subordinate court be set aside. They also prayed that an order be made setting aside the ex parte judgment, decree and other consequential orders in the lower court suit; and that they be granted leave to file a Statement of Defence for hearing and determination on merit.
[5] The appeal was urged by way of written submissions, pursuant to the directions given herein on 8 th July 2025. The appellants relied on their written submissions dated 31 st October 2025. They proposed a single issue for determination in this appeal, namely, whether service was properly effected. The appellants submitted at length on the right to be heard and whether or not the ex parte judgment was a regular one. In their submission, service was not properly effected on them and therefore the default judgment was irregular. Accordingly, they submitted that the default judgment ought to have been set aside ex debito justiciae . The appellants relied on Article 50(1) of the Constitution and several authorities, including Martha Wangari Karua v I E B C, Nyeri Civil Appeal No. 1 of 2017 and James Kanyiita Nderitu & another v Marios Philotas Ghias & another [2016] KECA 470 (KLR) in urging the Court to allow their appeal.
[6] The respondent on the other hand proposed for determination the question whether the appellants’ application dated 5 th April 2023 meets the threshold for setting aside judgment. The respondent relied on Shah v Mbogo & another [1967] EA, Patel v E A Cargo Handling Services Ltd [1974] EA 75 and Mohamed & another v Shoka [1990] KLR 463, among other authorities, to buttress their submission that no useful purpose would be served by setting aside the default judgment where, as there is no defence on the merits. It prayed for the dismissal of the appeal with costs.
[7] 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. According to the appellants, service was not effected and therefore the learned magistrate ought to have set aside the default judgment ex debito justiciae . In the premises, the only issue for determination in this appeal is whether the learned magistrate judiciously exercised her discretion in the circumstances.
[8] It is now trite that an appellate court ought not to interfere with the discretion of the lower court unless it is absolutely necessary. I n 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.”
[9] 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…”
[10] Service on the Government is provided for in Order 5 Rule 9 as follows:
The provisions of this Order shall have effect subject to section 13 of the Government Proceedings Act (Cap. 40), which provides for the service of documents on the Government for the purpose of or in connection with civil proceedings by or against the Government.
No proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing in the prescribed form have been served on the Government in relation to those proceedings.
(2) The notice to be served under this section shall be in the form prescribed in the Third Schedule to this Act and shall include the following particulars—
(a) the full names, description and place of residence of the proposed plaintiff;
(b) the date upon which the cause of action is alleged to have accrued;
(c) the name of the Government department alleged to be responsible and the full names of any servant or agent whom it is intended to join as a defendant;
(d) a concise statement of the facts on which it is alleged that the liability of the Government and of any such servant or agent has arisen;
(e) the relief that will be claimed and, so far as may be practicable, the value of the subject matter of the intended proceedings or the amount which it is intended to claim.
(3) The provisions of this section shall not apply to such part of any proceedings as relates to a claim for relief in respect of which the court may, by virtue of proviso (i) to section 16 (1), make an order declaratory of the right of the parties in lieu of an injunction.
[11] Further to the foregoing, Order 10 Rule 8 of the Civil Procedure Rules states that:
No judgment in default of appearance or pleading may be entered against the Government without the leave of the court and any application for leave shall be served not less than seven days before the return day.
[12] The record of the lower court shows that before the default judgment was entered, leave of the court was sought and granted on 8 th December 2020. Similarly, before entering the default judgment against the appellants, the lower court was satisfied as to service, noting that the Chief Officer (the 1 st appellant) was not sued in his personal capacity but as an officer and employee of the 2 nd appellant, the County Government of Homa Bay.
[13] In the circumstances, there was sufficient justification for the ex parte proceedings; and therefore the impugned judgment was, for all intents and purposes, 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 .”
[14] 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). There being no demonstration that the learned magistrate misdirected herself in law or that she misapprehended the facts, I find no justification for interfering with the exercise of discretion in this instance.
[15] Consequently, I find no merit in the appeal. The same is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11 TH DAY OF JUNE 2026