1. The court below heard the declaratory suit filed by the 1st and 2nd Respondents. In a decision delivered on 8th November 2024, the court held at paragraphs 20 and 21 as follows:
“20. On whether the 1st defendant ought to pay on the policy, I am duly guided by the case of Leslie John Wilkins v Buzeki Enterprises Ltd [2015] eKLR, where the court observed that the insurer was bound by the doctrine of subrogation. I hold for the plaintiff. There is already interlocutory judgment as against the 2nd defendant and in any event the argument and holdings above applies to them mutatis mutandis.
21. Thus I enter judgment for the plaintiffs against the defendants jointly and severally at Kes 2,300,000/-, with interest to run from the date of judgment in the primary suit. Costs of this suit to the plaintiff.”
2. The threat of execution in respect of the aforementioned judgment appears to have awakened the appellant from its apparent slumber, as it filed an application dated 17th February 2025 seeking to set aside (the said judgment), as well as the interlocutory judgment of 1st November 2022. The appellant contended that it was never served with the summons to enter an appearance and the pleadings and that it only became aware of the case once a demand to pay the decretal sum was made. The appellant contended that it had a strong defence, including the argument that the deceased, having been a driver of the motor vehicle involved in the accident, could not validly claim in respect of the subject accident, and that it would be unfair to condemn it unheard.
3. The application was opposed. Counsel for the 1st and 2nd Respondents contended that service was effected on the appellant as evidenced by the stamped copies of the summons.
4. The court below, upon considering the matter, found that the appellant was served. On whether it ought to exercise its wide discretion to set aside the Judgment, the court found that the issues raised in the draft deference were not triable; consequently, it dismissed the application in its entirety with costs.
5. Being aggrieved by the said decision, the appellant filed the instant appeal. The grounds of appeal are:-
1. That the learned trial magistrate misdirected herself on the principles of setting aside a judgment;
2. That the learned trial magistrate exercised his discretion wrongly in failing to take into account the correct principles and misapprehending the facts of the case;
3. That the learned trial magistrate erred in law by failing to hold that there was no service of summons and that the defence as drafted disclosed triable issues;
4. That the learned trial magistrate erred in law in failing to hold that, with the type of claim before the court, which was not liquidated, there was no provision for the entry of an interlocutory judgment.
5. That the learned trial magistrate disregarded the provisions of Order 5 Rule 3 of the Civil Procedure Rules and binding judicial precedent, hence abused the discretion vested in him in considering the application that was before him.
6. That, from the angry and defensive tone and accusative language used by the magistrate, complete with vague and unsubstantiated accusations made by the magistrate in the ruling, it was apparent that he was not objective and independent in looking at the application before him, hence he ended up abusing and misusing the discretion granted to him by the court;
7. That the learned trial magistrate intentionally misrepresented the issues listed as triable by the applicant, and refused to deal with others so as to merely arrive at a preconceived decision granted to him and occasioned and promoted injustice;
8. The trial court misdirected itself in holding that the appellant had participated in the proceedings, yet the judgment in issue was an ex parte judgment;
9. That the learned trial magistrate demonstrated open and manifest bias and prejudice and was determined to dismiss the application regardless, which in itself was an abuse of judicial power and discretion.
6. The appellant therefore sought to have the appeal allowed, with the consequence that the ruling dated 4th July 2025 be set aside and replaced with an order allowing the Notice of Motion dated 17th February 2025, and for the appellant to have costs.
7. It must be pointed out at the outset that the declaratory Judgment arose from a previous judgment in Mombasa CMCC No 3652 of 1999; Solomon Kasina Willy v Philipe Remy and IPP East Africa Ltd. In this latter suit, the court below entered judgment for Kes 2,000,000/= on 2nd September 2016. Being unable to execute against the respondents, the plaintiff filed a declaratory suit, to wit, Mombasa CMCC No E368 2020, against Occidental Life & General Assurance Ltd and Kenya Orient Insurance Co Ltd. It is this suit that resulted in the Judgment I referred to in paragraph 1 above.
8. In deciding not to set aside the judgment, the court below was exercising discretion. As with all discretions, the learned magistrate was under an obligation to do so on sound principles and not whimsically or capriciously. Was the court wrong? Is this a matter for the court to disturb the ruling of the court below?
9. The matter was canvassed by way of written submissions, which I have considered. The appellant's submissions are dated 2nd December 2025. It was contended that it was wrong for the court below to enter an interlocutory judgment in respect of a suit in which declaratory relief was sought; that the matter was not one of subrogation; and, if it was, that it was statute-barred. It was also contended that the draft defence raised weighty issues of law which this court should consider on the merits.
10. On their part, the 1st and 2nd Respondents’ counsel filed written submissions on 13th January 2025 in which they reiterated that the service was effected. It was urged that this court should not, therefore, disturb the interlocutory Judgment.
11. This is the first appeal. The appeal concerns the exercise of discretion by the court below. The question of whether there was a proper exercise of discretion is one of law. In determining whether there was proper use of discretion, this court will apply the same principles the Court of Appeal applies when determining second appeals.
12. In Mbogo and another v Shah [1968] EA 93, it was held that:
“That this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has acted on matters it should not have acted on, or because it has failed to take into consideration matters it should have taken into consideration, and in doing so arrived at a wrong conclusion.”
13. I note that, in respect of this matter, a question as to service would arise on two occasions. Firstly, when the court entered interlocutory judgment, and secondly, upon the amendment of the pleadings. Was there appropriate service in both instances? It would appear to me that, in the first instance, there was proper service, as evidenced by the affidavit of Mr Davidson Ngibuini Kuguru, sworn on 17th December 2020. The pleadings bear the appellant's stamp. What of the second instance? Having amended the pleadings, the 1st and 2nd Respondents ought to have effected service afresh. Was this done? I am not persuaded that this happened.
14. In the case of Evergreen Marine (Singapore) PTE Limited & another v Petra Development Services Limited [2023] KECA 1282 (KLR), it was held that:
“Although there was already in force an interlocutory judgment in favour of the respondent, the appellants were nonetheless entitled to participate in the proceedings during the formal proof and to that end should have known the nature of the claim for special damages it had to meet. By permitting the respondent to substantively amend its claim for special damages post cross examination of the respondent’s key witness without granting the appellant’s an opportunity to interrogate the new claim, in our view, occasioned prejudice to the appellants. Given that there was already an interlocutory judgment in place in favour of the respondent and the door for filing a defence by the appellants had been closed, such opportunity would have entailed a recalling of the respondent’s witness for cross examination on the amended claim.”
15. In a matter where no proper service is shown, the court ought to set aside the judgment as a matter of right, ex debito justitiae.
16. I have perused the draft defence; it would appear to me that the same is not idle. It raises very serious, triable issues which ought to be interrogated on the merits. I am aware, though, that this is a very old matter which should be concluded without further delay.
17. In my view, the appeal has merit. I set aside the ruling dated 4th July 2025 and allow the application dated 17th February 2025, filed by the appellant in the Court below, with the consequence that the judgment of the trial court against the appellant is set aside. I order that the appellant file its defence within 14 days of the date hereof.
18. On costs, each party shall bear their own costs of the appeal.
19. In the interest of justice, noting that this matter is very old, I order that the matter in the court below be heard and determined on the merits within 90 days of the date hereof.
20. It is so ordered.
Dated and signed at Nairobi this 10th day of July 2026.
“20. On whether the 1st defendant ought to pay on the policy, I am duly guided by the case of Leslie John Wilkins v Buzeki Enterprises Ltd [2015] eKLR, where the court observed that the insurer was bound by the doctrine of subrogation. I hold for the plaintiff. There is already interlocutory judgment as against the 2nd defendant and in any event the argument and holdings above applies to them mutatis mutandis.
21. Thus I enter judgment for the plaintiffs against the defendants jointly and severally at Kes 2,300,000/-, with interest to run from the date of judgment in the primary suit. Costs of this suit to the plaintiff.”
2. The threat of execution in respect of the aforementioned judgment appears to have awakened the appellant from its apparent slumber, as it filed an application dated 17th February 2025 seeking to set aside (the said judgment), as well as the interlocutory judgment of 1st November 2022. The appellant contended that it was never served with the summons to enter an appearance and the pleadings and that it only became aware of the case once a demand to pay the decretal sum was made. The appellant contended that it had a strong defence, including the argument that the deceased, having been a driver of the motor vehicle involved in the accident, could not validly claim in respect of the subject accident, and that it would be unfair to condemn it unheard.
3. The application was opposed. Counsel for the 1st and 2nd Respondents contended that service was effected on the appellant as evidenced by the stamped copies of the summons.
4. The court below, upon considering the matter, found that the appellant was served. On whether it ought to exercise its wide discretion to set aside the Judgment, the court found that the issues raised in the draft deference were not triable; consequently, it dismissed the application in its entirety with costs.
5. Being aggrieved by the said decision, the appellant filed the instant appeal. The grounds of appeal are:-
1. That the learned trial magistrate misdirected herself on the principles of setting aside a judgment;
2. That the learned trial magistrate exercised his discretion wrongly in failing to take into account the correct principles and misapprehending the facts of the case;
3. That the learned trial magistrate erred in law by failing to hold that there was no service of summons and that the defence as drafted disclosed triable issues;
4. That the learned trial magistrate erred in law in failing to hold that, with the type of claim before the court, which was not liquidated, there was no provision for the entry of an interlocutory judgment.
5. That the learned trial magistrate disregarded the provisions of Order 5 Rule 3 of the Civil Procedure Rules and binding judicial precedent, hence abused the discretion vested in him in considering the application that was before him.
6. That, from the angry and defensive tone and accusative language used by the magistrate, complete with vague and unsubstantiated accusations made by the magistrate in the ruling, it was apparent that he was not objective and independent in looking at the application before him, hence he ended up abusing and misusing the discretion granted to him by the court;
7. That the learned trial magistrate intentionally misrepresented the issues listed as triable by the applicant, and refused to deal with others so as to merely arrive at a preconceived decision granted to him and occasioned and promoted injustice;
8. The trial court misdirected itself in holding that the appellant had participated in the proceedings, yet the judgment in issue was an ex parte judgment;
9. That the learned trial magistrate demonstrated open and manifest bias and prejudice and was determined to dismiss the application regardless, which in itself was an abuse of judicial power and discretion.
6. The appellant therefore sought to have the appeal allowed, with the consequence that the ruling dated 4th July 2025 be set aside and replaced with an order allowing the Notice of Motion dated 17th February 2025, and for the appellant to have costs.
7. It must be pointed out at the outset that the declaratory Judgment arose from a previous judgment in Mombasa CMCC No 3652 of 1999; Solomon Kasina Willy v Philipe Remy and IPP East Africa Ltd. In this latter suit, the court below entered judgment for Kes 2,000,000/= on 2nd September 2016. Being unable to execute against the respondents, the plaintiff filed a declaratory suit, to wit, Mombasa CMCC No E368 2020, against Occidental Life & General Assurance Ltd and Kenya Orient Insurance Co Ltd. It is this suit that resulted in the Judgment I referred to in paragraph 1 above.
8. In deciding not to set aside the judgment, the court below was exercising discretion. As with all discretions, the learned magistrate was under an obligation to do so on sound principles and not whimsically or capriciously. Was the court wrong? Is this a matter for the court to disturb the ruling of the court below?
9. The matter was canvassed by way of written submissions, which I have considered. The appellant's submissions are dated 2nd December 2025. It was contended that it was wrong for the court below to enter an interlocutory judgment in respect of a suit in which declaratory relief was sought; that the matter was not one of subrogation; and, if it was, that it was statute-barred. It was also contended that the draft defence raised weighty issues of law which this court should consider on the merits.
10. On their part, the 1st and 2nd Respondents’ counsel filed written submissions on 13th January 2025 in which they reiterated that the service was effected. It was urged that this court should not, therefore, disturb the interlocutory Judgment.
11. This is the first appeal. The appeal concerns the exercise of discretion by the court below. The question of whether there was a proper exercise of discretion is one of law. In determining whether there was proper use of discretion, this court will apply the same principles the Court of Appeal applies when determining second appeals.
12. In Mbogo and another v Shah [1968] EA 93, it was held that:
“That this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has acted on matters it should not have acted on, or because it has failed to take into consideration matters it should have taken into consideration, and in doing so arrived at a wrong conclusion.”
13. I note that, in respect of this matter, a question as to service would arise on two occasions. Firstly, when the court entered interlocutory judgment, and secondly, upon the amendment of the pleadings. Was there appropriate service in both instances? It would appear to me that, in the first instance, there was proper service, as evidenced by the affidavit of Mr Davidson Ngibuini Kuguru, sworn on 17th December 2020. The pleadings bear the appellant's stamp. What of the second instance? Having amended the pleadings, the 1st and 2nd Respondents ought to have effected service afresh. Was this done? I am not persuaded that this happened.
14. In the case of Evergreen Marine (Singapore) PTE Limited & another v Petra Development Services Limited [2023] KECA 1282 (KLR), it was held that:
“Although there was already in force an interlocutory judgment in favour of the respondent, the appellants were nonetheless entitled to participate in the proceedings during the formal proof and to that end should have known the nature of the claim for special damages it had to meet. By permitting the respondent to substantively amend its claim for special damages post cross examination of the respondent’s key witness without granting the appellant’s an opportunity to interrogate the new claim, in our view, occasioned prejudice to the appellants. Given that there was already an interlocutory judgment in place in favour of the respondent and the door for filing a defence by the appellants had been closed, such opportunity would have entailed a recalling of the respondent’s witness for cross examination on the amended claim.”
15. In a matter where no proper service is shown, the court ought to set aside the judgment as a matter of right, ex debito justitiae.
16. I have perused the draft defence; it would appear to me that the same is not idle. It raises very serious, triable issues which ought to be interrogated on the merits. I am aware, though, that this is a very old matter which should be concluded without further delay.
17. In my view, the appeal has merit. I set aside the ruling dated 4th July 2025 and allow the application dated 17th February 2025, filed by the appellant in the Court below, with the consequence that the judgment of the trial court against the appellant is set aside. I order that the appellant file its defence within 14 days of the date hereof.
18. On costs, each party shall bear their own costs of the appeal.
19. In the interest of justice, noting that this matter is very old, I order that the matter in the court below be heard and determined on the merits within 90 days of the date hereof.
20. It is so ordered.
Dated and signed at Nairobi this 10th day of July 2026.