1. This Appeal arises out of the Ruling delivered on 13th January, 2025. The ruling was delivered by Hon. G. M. Mokua (RM). It is in respect to proceedings in Kaloleni CMCC No. 291 of 2018. The Trial Court declined to set aside the Judgment issued by the Court on 4th November, 2020. This is a first appeal arising out of that refusal.
Background Facts
2. The Appellant was the unsuccessful second Defendant before the Trial Court. The first Respondent is the successful Plaintiff. The second Respondent was the first Defendant. The trial before the Trial Court proceeded ex parte.
3. The Plaintiff filed suit against the Defendants. He claimed special and general damages. These damages were on account of personal injuries sustained by the Plaintiff. These arose from a road traffic accident that occurred on 29th March, 2018. The Plaintiff was a passenger in the first Defendant’s motor vehicle. This vehicle collided with the second Defendant’s vehicle.
4. The Plaintiff sought leave for substituted service. He applied to serve the Defendants via their last known address. This address was care of Kalmato Sacco, P.O. Box 237, Kaloleni. The application was brought by way of a Chamber Summons dated 24th July, 2019. The Trial Court allowed it on 4th September, 2019.
5. Thereafter, the Plaintiff effected service of Summons via registered post. The Defendants failed to file a Memorandum of Appearance and a Defence. The Plaintiff proceeded to file a Request for Interlocutory Judgment dated 17th August, 2020. The lower Court entered an interlocutory judgment on 19th August, 2020.
6. The matter was thereafter listed for formal proof. The Plaintiff testified. A final Judgment was delivered on 4th November, 2020.
7. The Court entered Judgment for the Plaintiff. Liability was apportioned at 50% against the first Defendant and 50% against the second Defendant. The details of the judgement were as follows:
a) Liability apportioned at 50% against the 1st Defendant and 50% against the 2nd Defendant.
b) General damages Kshs 1,400,000.00
c) Future Medical Expenses Nil
d) Special damages Kshs 71,250.00
Total Kshs 1,471,250.00
8. The Plaintiff proceeded to attach the first Defendant's property. This led the first Defendant to file a Notice of Motion dated 26th January, 2024. He sought to set aside the Judgment. The Trial Court dismissed that application by a Ruling dated 5th March, 2024.
9. The Plaintiff thereafter proceeded to attach the second Defendant's motor vehicle, registration KAT 677Z. This led the second Defendant (Appellant herein) to file an application under a Certificate of Urgency. The Notice of Motion was dated 22nd October, 2024.
10. The Appellant sought several orders as follows:
1. THAT this motion be certified urgent.
2. THAT this Honourable Court do grant leave for the firm of Maulidi O.A Law Advocates to come on record for the 2nd Defendant/Applicant.
3. THAT this Honourable Court be pleased to issue an order stay of execution of the decree issued on the 2/10/2024 pending the hearing and determination of this application.
4. THAT this Honourable Court be pleased to grant an order directing the release of the motor vehicle registration number KAT 677Z by Beyond Auctioneers to the 2nd Defendant/Applicant herein.
5. THAT this Honourable Court be pleased to set aside the judgment issued by this court on the 11/4/2020 pending the hearing and determination of this application.
6. THAT costs of the application be in the cause.
11. The Trial Court dismissed this application vide a Ruling dated 13th January, 2025. The Trial Court held that the Appellant was duly served. It further held that the Appellant failed to annex a draft defence. This dismissal paved the way for execution to proceed. It triggered this Appeal.
12. The Memorandum of Appeal raises four grounds:
1. The Learned Magistrate erred in law in dismissing the Appellant’s application dated 22nd October 2024 without reasonable and/or justifiable cause and in complete contravention of Article 50, 159 (2) (d) of the Constitution.
2. The Learned Magistrate erred in law and fact in failing to give the Appellant a fair hearing in complete contravention of Article 50 of the Constitution.
3. The Learned Magistrate erred in law and fact in not allowing the Application to set aside the Judgment that was obtained irregularly on the account of proven non service to the appellant/Applicant in the trial court and reopen the case to allow the appellant/applicant a fair hearing especially when liability did not rise from the appellant/applicant.
4. The Learned Magistrate erred in fact and law by failing to take into account the provisions of Order 5 Rule 16 of the Civil Procedural (sic) rules 2010 which gives the court power to summon and cross examine the serving officer on oath or cause him to be so examined by another court, where in this particular case, the service of summons was in dispute.
13. The Appellant filed written submissions. He submitted that he was never served. He argued that the constitutional right to a fair hearing under Article 50 was breached. He cited Ridge v Baldwin [1964] AC 40 on the rules of natural justice. He also cited Judicial Service Commission v Mutava & another [2015] KECA 741 (KLR) and Judicial Service Commission v Shollei & another [2014] KECA 334 (KLR). These cases emphasize the duty to act fairly.
14. The Appellant further submitted that the judgment was irregular. He cited Bouchard International (Services) Ltd v Philip Nzioki M’mwereria [1987] KECA 75 (KLR). The case states that lack of an initiating process renders subsequent steps irregular. The Appellant argued that Kalmato Sacco denied receiving the summons. He faulted the Trial Court for not examining the process server under Order 5 Rule 16 of the Civil Procedure Rules.
15. The first Respondent opposed the appeal. He submitted that substituted service was lawful. He cited Nderitu & another v Ghikas & another [2016] KECA 470 (KLR). This case distinguishes regular from irregular judgments. He argued the judgment was regular.
16. The first Respondent submitted that setting aside a regular judgment requires sufficient cause. He cited Baraka Apparel EPZ (K) Ltd v Rose Mbula Ojwang t/a Faida 2002 Caterers [2007] KECA 471 (KLR) and Shah v Mbogo & Another [1967] EA 116 on judicial discretion. He cited Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR) to define sufficient cause.
17. Finally, the first Respondent argued that a draft defence was mandatory. He cited CMC Holding Limited v Nzioki [2004] KECA 143 (KLR) and Olympic Escort International Co. Ltd. & 2 others v Parminder Singh Sandhu & another [2009] KECA 258 (KLR). He argued that without a draft defence, the Court cannot ascertain triable issues.
Issue for Determination
18. The Court has considered the Memorandum of Appeal. It has reviewed the Record of Appeal. It has also evaluated the submissions filed by Counsel for both parties. The Court frames a single issue for determination.
(a) The issue is whether the Trial Court erred in failing to set aside the interlocutory judgment entered on 15th August, 2020, and the final judgment delivered on 4th November, 2020.
Analysis
19. This is a first appeal. The duty of an Appellate Court on a first appeal is well settled. The Court must subject the evidence to a fresh and exhaustive scrutiny. It must draw its own conclusions.
20. This duty was set out in the celebrated case of Selle v Associated Motor Boat Co. & others [1968] E.A. 123. The Court of Appeal stated:
"An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.".
21. This Court is also guided by Peters v Sunday Post [1958] EA 424. An Appellate Court will only interfere with a Trial Court's factual findings if they are based on no evidence or on a misapprehension of the evidence. Hence this Court has to re-evaluate the Trial Court's finding on service.
22. Service of summons is the foundation of civil litigation. Order 5 Rule 16 of the Civil Procedure Rules 2010 provides a mechanism for resolving disputed service. It allows the Court to examine the serving officer on oath. The Trial Court failed to invoke this provision.
23. The Appellant produced a letter from the Chairman of Kalmato Sacco. The letter explicitly denied receipt of the summons on behalf of the Appellant. This raised a bona fide dispute regarding the substituted service. The Trial Court misdirected itself by ignoring this rebuttal evidence. The Court relied solely on the police abstract to assume agency. A police abstract does not create an agency for service of legal process.
24. The right to be heard is enshrined in the Constitution. Article 50(1) of the Constitution guarantees a fair hearing. A party cannot be condemned unheard. The denial of service by the Sacco meant the Appellant was completely unaware of the suit. Proceeding ex parte under these circumstances violated the rules of natural justice.
25. The jurisprudence of the Court is clear. A judgment obtained without proper service is irregular. The Court will lean towards ensuring that parties are duly heard and cases determined on merits. The Court of Appeal articulated this in James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR. The Court 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.”
26. Since the Appellant was not served, the interlocutory judgment was irregular. The subsequent final judgment was equally irregular. An irregular judgment is a nullity. It must be set aside as a matter of right.
27. This brings the Court to the issue of the draft defence. The Trial Court faulted the Appellant for failing to annex a draft defence. The Trial Court relied on the Olympic Escort case to demand triable issues. This was a fundamental error of law.
28. The requirement to annex a draft defence applies only to regular judgments. Where a judgment is irregular, no draft defence is required. A Court cannot demand proof of a triable issue to set aside a nullity.
29. This position was affirmed in Craig v Kanssen [1943] 1 KB 256. Lord Greene MR stated:
"Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order."
30. The Court has considered the grounds raised in the Memorandum of Appeal. The Appellant's grounds are fully merited. The Trial Court exercised its discretion improperly. It took into account an irrelevant consideration, namely the absence of a draft defence. It failed to consider a relevant matter, namely the Sacco's denial of service.
31. The Trial Court misapprehended the law on irregular judgments. It denied the Appellant his constitutional right to a fair hearing. The default judgment cannot be allowed to stand.
32. It is the duty of this Court to correct such manifest errors. Substantive justice demands that the Appellant be given his day in Court. He must be allowed to defend the claim on its merits. The Application by the Appellant before the Trial Court ought to have been drafted to capture the very nature of the application. That is, that it sought to set aside the interlocutory Judgment so that the Applicant could have leave to defend the suit. The Court has in exercise of its discretion set aside the interlocutory Judgment and issued directions that will progress this matter forward.
33. The Court in doing so is minded that it is called upon to deliver substantive justice and in applicable cases overlook form in favour of substance. In doing so the Court has to be satisfied that it is advancing the course of justice. Having looked at the application before the Trial Court, the subject of this Appeal, it is clear to this Court as it was to the Trial Court that what was sought was the setting aside of the Interlocutory Judgment.
34. In conclusion, the Trial Court erred in failing to set aside the interlocutory judgment entered on 15th August, 2020, and the final judgment delivered on 4th November, 2020. In essence the Court sets asides the interlocutory judgment in default of defence to pave way for Appellant to defend the initial suit. The appeal succeeds.
35. On costs, the same generally follow the event. The Appellant has succeeded in this appeal. The Appellant is entitled to the costs of this appeal. The costs of the application in the lower Court are similarly awarded to the 2nd Defendant/Appellant.
Determination
36. The Court finds that the Appeal is merited and makes the following orders:
(a) The Appeal is HEREBY allowed.
(b) The Ruling and orders of the Trial Court dated 13th January 2025 are HEREBY quashed and set aside. They are replaced and substituted with an order allowing the Application by way of a Notice of Motion dated 22nd October, 2024.
(c) The Interlocutory Judgment entered against the Appellant before the Trial Court in default of an Appearance and defence dated 15th August, 2020 is HEREBY set aside together with the final Judgment dated 4th November, 2020 and the resulting Decree.
(d) The Firm of M/s. Maulidi O.A. Law Advocates is granted leave to come on record for the 2nd Defendant in the Trial Court.
(e) The 2nd Defendant in the Trial Court to enter an appearance and file a Statement of Defence within the next Fourteen (14) days from the date hereof.
(f) That all execution and attachment against the 2nd Defendant/Appellant’s goods is HEREBY lifted and set aside.
(g) It is HEREBY directed that the attached motor vehicle KAT 677Z be released to the 2nd Defendant/Appellant or his representative(s) by Beyond Auctioneers at no costs or charges in any event within Twenty-One (21) days from the date of this Order.
(h) That the Trial Court shall proceed to list the suit for a mention to be heard afresh on merits by any other Magistrate save for Hon G.M Mokua.
(i) The Costs of this Appeal are awarded to the Appellant while the costs of the Motion dated 22nd October, 2024 before the Trial Court are awarded to the 2nd Defendant/Appellant.
37. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Mummin for the Appellant.
Miss Mutua holding brief for Mr. Nyanje for the Respondent.
Mr. Mohamed - Court Assistant.
Background Facts
2. The Appellant was the unsuccessful second Defendant before the Trial Court. The first Respondent is the successful Plaintiff. The second Respondent was the first Defendant. The trial before the Trial Court proceeded ex parte.
3. The Plaintiff filed suit against the Defendants. He claimed special and general damages. These damages were on account of personal injuries sustained by the Plaintiff. These arose from a road traffic accident that occurred on 29th March, 2018. The Plaintiff was a passenger in the first Defendant’s motor vehicle. This vehicle collided with the second Defendant’s vehicle.
4. The Plaintiff sought leave for substituted service. He applied to serve the Defendants via their last known address. This address was care of Kalmato Sacco, P.O. Box 237, Kaloleni. The application was brought by way of a Chamber Summons dated 24th July, 2019. The Trial Court allowed it on 4th September, 2019.
5. Thereafter, the Plaintiff effected service of Summons via registered post. The Defendants failed to file a Memorandum of Appearance and a Defence. The Plaintiff proceeded to file a Request for Interlocutory Judgment dated 17th August, 2020. The lower Court entered an interlocutory judgment on 19th August, 2020.
6. The matter was thereafter listed for formal proof. The Plaintiff testified. A final Judgment was delivered on 4th November, 2020.
7. The Court entered Judgment for the Plaintiff. Liability was apportioned at 50% against the first Defendant and 50% against the second Defendant. The details of the judgement were as follows:
a) Liability apportioned at 50% against the 1st Defendant and 50% against the 2nd Defendant.
b) General damages Kshs 1,400,000.00
c) Future Medical Expenses Nil
d) Special damages Kshs 71,250.00
Total Kshs 1,471,250.00
8. The Plaintiff proceeded to attach the first Defendant's property. This led the first Defendant to file a Notice of Motion dated 26th January, 2024. He sought to set aside the Judgment. The Trial Court dismissed that application by a Ruling dated 5th March, 2024.
9. The Plaintiff thereafter proceeded to attach the second Defendant's motor vehicle, registration KAT 677Z. This led the second Defendant (Appellant herein) to file an application under a Certificate of Urgency. The Notice of Motion was dated 22nd October, 2024.
10. The Appellant sought several orders as follows:
1. THAT this motion be certified urgent.
2. THAT this Honourable Court do grant leave for the firm of Maulidi O.A Law Advocates to come on record for the 2nd Defendant/Applicant.
3. THAT this Honourable Court be pleased to issue an order stay of execution of the decree issued on the 2/10/2024 pending the hearing and determination of this application.
4. THAT this Honourable Court be pleased to grant an order directing the release of the motor vehicle registration number KAT 677Z by Beyond Auctioneers to the 2nd Defendant/Applicant herein.
5. THAT this Honourable Court be pleased to set aside the judgment issued by this court on the 11/4/2020 pending the hearing and determination of this application.
6. THAT costs of the application be in the cause.
11. The Trial Court dismissed this application vide a Ruling dated 13th January, 2025. The Trial Court held that the Appellant was duly served. It further held that the Appellant failed to annex a draft defence. This dismissal paved the way for execution to proceed. It triggered this Appeal.
12. The Memorandum of Appeal raises four grounds:
1. The Learned Magistrate erred in law in dismissing the Appellant’s application dated 22nd October 2024 without reasonable and/or justifiable cause and in complete contravention of Article 50, 159 (2) (d) of the Constitution.
2. The Learned Magistrate erred in law and fact in failing to give the Appellant a fair hearing in complete contravention of Article 50 of the Constitution.
3. The Learned Magistrate erred in law and fact in not allowing the Application to set aside the Judgment that was obtained irregularly on the account of proven non service to the appellant/Applicant in the trial court and reopen the case to allow the appellant/applicant a fair hearing especially when liability did not rise from the appellant/applicant.
4. The Learned Magistrate erred in fact and law by failing to take into account the provisions of Order 5 Rule 16 of the Civil Procedural (sic) rules 2010 which gives the court power to summon and cross examine the serving officer on oath or cause him to be so examined by another court, where in this particular case, the service of summons was in dispute.
13. The Appellant filed written submissions. He submitted that he was never served. He argued that the constitutional right to a fair hearing under Article 50 was breached. He cited Ridge v Baldwin [1964] AC 40 on the rules of natural justice. He also cited Judicial Service Commission v Mutava & another [2015] KECA 741 (KLR) and Judicial Service Commission v Shollei & another [2014] KECA 334 (KLR). These cases emphasize the duty to act fairly.
14. The Appellant further submitted that the judgment was irregular. He cited Bouchard International (Services) Ltd v Philip Nzioki M’mwereria [1987] KECA 75 (KLR). The case states that lack of an initiating process renders subsequent steps irregular. The Appellant argued that Kalmato Sacco denied receiving the summons. He faulted the Trial Court for not examining the process server under Order 5 Rule 16 of the Civil Procedure Rules.
15. The first Respondent opposed the appeal. He submitted that substituted service was lawful. He cited Nderitu & another v Ghikas & another [2016] KECA 470 (KLR). This case distinguishes regular from irregular judgments. He argued the judgment was regular.
16. The first Respondent submitted that setting aside a regular judgment requires sufficient cause. He cited Baraka Apparel EPZ (K) Ltd v Rose Mbula Ojwang t/a Faida 2002 Caterers [2007] KECA 471 (KLR) and Shah v Mbogo & Another [1967] EA 116 on judicial discretion. He cited Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR) to define sufficient cause.
17. Finally, the first Respondent argued that a draft defence was mandatory. He cited CMC Holding Limited v Nzioki [2004] KECA 143 (KLR) and Olympic Escort International Co. Ltd. & 2 others v Parminder Singh Sandhu & another [2009] KECA 258 (KLR). He argued that without a draft defence, the Court cannot ascertain triable issues.
Issue for Determination
18. The Court has considered the Memorandum of Appeal. It has reviewed the Record of Appeal. It has also evaluated the submissions filed by Counsel for both parties. The Court frames a single issue for determination.
(a) The issue is whether the Trial Court erred in failing to set aside the interlocutory judgment entered on 15th August, 2020, and the final judgment delivered on 4th November, 2020.
Analysis
19. This is a first appeal. The duty of an Appellate Court on a first appeal is well settled. The Court must subject the evidence to a fresh and exhaustive scrutiny. It must draw its own conclusions.
20. This duty was set out in the celebrated case of Selle v Associated Motor Boat Co. & others [1968] E.A. 123. The Court of Appeal stated:
"An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.".
21. This Court is also guided by Peters v Sunday Post [1958] EA 424. An Appellate Court will only interfere with a Trial Court's factual findings if they are based on no evidence or on a misapprehension of the evidence. Hence this Court has to re-evaluate the Trial Court's finding on service.
22. Service of summons is the foundation of civil litigation. Order 5 Rule 16 of the Civil Procedure Rules 2010 provides a mechanism for resolving disputed service. It allows the Court to examine the serving officer on oath. The Trial Court failed to invoke this provision.
23. The Appellant produced a letter from the Chairman of Kalmato Sacco. The letter explicitly denied receipt of the summons on behalf of the Appellant. This raised a bona fide dispute regarding the substituted service. The Trial Court misdirected itself by ignoring this rebuttal evidence. The Court relied solely on the police abstract to assume agency. A police abstract does not create an agency for service of legal process.
24. The right to be heard is enshrined in the Constitution. Article 50(1) of the Constitution guarantees a fair hearing. A party cannot be condemned unheard. The denial of service by the Sacco meant the Appellant was completely unaware of the suit. Proceeding ex parte under these circumstances violated the rules of natural justice.
25. The jurisprudence of the Court is clear. A judgment obtained without proper service is irregular. The Court will lean towards ensuring that parties are duly heard and cases determined on merits. The Court of Appeal articulated this in James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR. The Court 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.”
26. Since the Appellant was not served, the interlocutory judgment was irregular. The subsequent final judgment was equally irregular. An irregular judgment is a nullity. It must be set aside as a matter of right.
27. This brings the Court to the issue of the draft defence. The Trial Court faulted the Appellant for failing to annex a draft defence. The Trial Court relied on the Olympic Escort case to demand triable issues. This was a fundamental error of law.
28. The requirement to annex a draft defence applies only to regular judgments. Where a judgment is irregular, no draft defence is required. A Court cannot demand proof of a triable issue to set aside a nullity.
29. This position was affirmed in Craig v Kanssen [1943] 1 KB 256. Lord Greene MR stated:
"Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order."
30. The Court has considered the grounds raised in the Memorandum of Appeal. The Appellant's grounds are fully merited. The Trial Court exercised its discretion improperly. It took into account an irrelevant consideration, namely the absence of a draft defence. It failed to consider a relevant matter, namely the Sacco's denial of service.
31. The Trial Court misapprehended the law on irregular judgments. It denied the Appellant his constitutional right to a fair hearing. The default judgment cannot be allowed to stand.
32. It is the duty of this Court to correct such manifest errors. Substantive justice demands that the Appellant be given his day in Court. He must be allowed to defend the claim on its merits. The Application by the Appellant before the Trial Court ought to have been drafted to capture the very nature of the application. That is, that it sought to set aside the interlocutory Judgment so that the Applicant could have leave to defend the suit. The Court has in exercise of its discretion set aside the interlocutory Judgment and issued directions that will progress this matter forward.
33. The Court in doing so is minded that it is called upon to deliver substantive justice and in applicable cases overlook form in favour of substance. In doing so the Court has to be satisfied that it is advancing the course of justice. Having looked at the application before the Trial Court, the subject of this Appeal, it is clear to this Court as it was to the Trial Court that what was sought was the setting aside of the Interlocutory Judgment.
34. In conclusion, the Trial Court erred in failing to set aside the interlocutory judgment entered on 15th August, 2020, and the final judgment delivered on 4th November, 2020. In essence the Court sets asides the interlocutory judgment in default of defence to pave way for Appellant to defend the initial suit. The appeal succeeds.
35. On costs, the same generally follow the event. The Appellant has succeeded in this appeal. The Appellant is entitled to the costs of this appeal. The costs of the application in the lower Court are similarly awarded to the 2nd Defendant/Appellant.
Determination
36. The Court finds that the Appeal is merited and makes the following orders:
(a) The Appeal is HEREBY allowed.
(b) The Ruling and orders of the Trial Court dated 13th January 2025 are HEREBY quashed and set aside. They are replaced and substituted with an order allowing the Application by way of a Notice of Motion dated 22nd October, 2024.
(c) The Interlocutory Judgment entered against the Appellant before the Trial Court in default of an Appearance and defence dated 15th August, 2020 is HEREBY set aside together with the final Judgment dated 4th November, 2020 and the resulting Decree.
(d) The Firm of M/s. Maulidi O.A. Law Advocates is granted leave to come on record for the 2nd Defendant in the Trial Court.
(e) The 2nd Defendant in the Trial Court to enter an appearance and file a Statement of Defence within the next Fourteen (14) days from the date hereof.
(f) That all execution and attachment against the 2nd Defendant/Appellant’s goods is HEREBY lifted and set aside.
(g) It is HEREBY directed that the attached motor vehicle KAT 677Z be released to the 2nd Defendant/Appellant or his representative(s) by Beyond Auctioneers at no costs or charges in any event within Twenty-One (21) days from the date of this Order.
(h) That the Trial Court shall proceed to list the suit for a mention to be heard afresh on merits by any other Magistrate save for Hon G.M Mokua.
(i) The Costs of this Appeal are awarded to the Appellant while the costs of the Motion dated 22nd October, 2024 before the Trial Court are awarded to the 2nd Defendant/Appellant.
37. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Mummin for the Appellant.
Miss Mutua holding brief for Mr. Nyanje for the Respondent.
Mr. Mohamed - Court Assistant.