REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
HCCA NO. E058 OF 2025
PAUL MACHORA…………………………………… APPELLANT
VERSUS
VICTOR NYAMWEYA MOSE…………...…………RESPONDENT
(Being an appeal from the ruling dated 14 th May, 2025 by Hon. W.C.Keter (RM) delivered in Kisii SCCOMM No. E108 of 2024)
JUDGMENT
1. This appeal is against the ruling and order of the Small Claims Court in Kisii SCCCOMM/E108/2024 by Hon. W.C.Keter (Adjudicator) dated 14 th May, 2025 in which the trial court allowed an application dated 19 th July, 2024 brought by the Appellant under the provisions of Sections 1A, 1B, 3, 3A of the Civil Procedure Act and Order 12 Rule 7, Order 51 Rule (1) and Rule 15 of the Civil Procedure Rules seeking to stay and set aside the default judgment dated 11 th June, 2024 .
Background
2. The Application before the trial court and as supported by the sworn affidavit of Paul Machora was broadly on the grounds that on the 11 th June, 2024 the trial court, Hon. C.C.Rono (RM) ,entered a default judgement in the sum Ksh. 1,000,000/= against the Appellant and awarded costs to the Respondent.
3. It was deponed before the trial court that the said judgment was entered in default of appearance and that the Appellant was never served with the pleadings or summons to enter appearance.
4. It was also deponed that the Appellant only came to learn of the default judgement when he was served with a notice of sale of movable property and at the same time his motor-vehicle was impounded without any proclamation. That the warrants of attachment and notice of sale were served upon the applicant on the 17 th July 2024 .
5. The Appellant averred that he was not served either physically or electronically with any pleadings or summons. Further, that it was by reason of the Appellant not being served that he was unaware of the proceedings which consequently led to the default judgement.
6. The application before the trial court was opposed by the Respondent through a replying affidavit sworn by Victor Nyamweya Mose dated 15 th May, 2025 broadly on the grounds that the application was devoid of merit and only meant to delay the quick disposal of the matter. It was deponed that a process server by the name of Peter Ariga had served the Appellant with the pleadings and a mention notice personally on 3 rd May, 2024 and that the Appellant acknowledged service by indicating his name and signing the copies served upon him. The certificate of service was annexed to the affidavit as VNM-1 .
7. The Respondent also deponed before the trial court that upon being directed to effect service a second time, on 23 rd May, 2024 service was effected again on 24 th May, 2024 and the certificate of service was annexed to the affidavit as VNM-2 . Further that when the matter was mentioned before the trial court on 6 th June, 2024 the 14-day statutory period to enter appearance had not lapsed thus a further mention date was set. It is also averred that the Appellant was served with a mention notice for the mention date of 6 th June, 2024 and the respondent annexed a certificate of service (see the annexure marked as “ VNM-3.”)
8. The Respondent deponed before the trial court that on 11 th June, 2024 a default judgement was entered in his favour once the court was satisfied of the service upon the applicant. Further that a Notice of Entry of Judgement was served upon the Applicant. The certificate of service has annexed to the Respondent’s affidavit filed before the trial court. Thereafter execution proceedings commenced against the appellant leading to the attachment of the Appellant’s motor-vehicle so as to settle the decretal sum.
9. In a supplementary affidavit sworn before the trial court on 10 th September, 2024 pursuant to leave granted on 10 th September, 2024 the Appellant deponed that contrary to the averments in the certificate of service he’s been acquainted or known to the process server one Peter Ariga and that the statement by the process server that he served him at his office at the SDA conference at Nyanchwa was materially false as he has never had an office at Nyanchwa. He explained that Nyanchwa is their headquarters and that only the executive leadership of his church had offices there and that he was not part of the said executive leadership.
10. The Appellant deponed that he worked as a district pastor of the SDA Church South Kenya Conference and was based at the Riana District of the SDA church and that Riana was in Bonchari Constituency. He annexed a letter from the South SDA Kenya Conference transferring him to Riana district with effect from 31 st December, 2022 . He also deponed that he had a draft defence on record that raised triable issues.
11. The Application before the trial court came up for hearing on the 17 th October, 2024 whereupon the process server was cross examined by the Appellant’s advocate. Peter Aringa Mokaya testified that he was a process server working in a law firm and that he was referred to Nyanchwa SDA Conference in Nyanchwa town.
12. On cross-examination, the process server was referred to the certificate of service dated 3 rd May, 2024 where he confirmed that he had served the mention notice dated 20 th April, 2024 and the statement of claim and annexures. He conceded, however, that he had not annexed the statement of claim to the Respondent’s replying affidavit. Further, he reiterated that he had met the Appellant at his office in Nyanchwa and that he wrote his name, signed and dated the statement of claim which he had then annexed to the replying affidavit. He further testified that when he effected service on two other occasions, the Appellant declined to sign.
13. The Trial court delivered in ruling on the 14 th May, 2025 finding that while the Certificates of Service indicated that the Appellant was served with the court processes physically, the certificate of service dated 3 rd May, 2024 showed that the name Nelson Bosire was handwritten thereon and a signature appended thereto dated 3 rd May, 2025 .
14. The trial court found that the Appellant’s name was Paul Machora and not Nelson Bosire and concluded that service may have been effected on someone else and that the other court processes may have been served on someone else as well. The ex-parte judgement was set aside on conditional basis that the Appellant would deposit half of the decretal sum (Ksh. 500, 000/=) and pay throw away costs of Ksh. 10, 000/= to the Respondent within 14 days from the date of the ruling. A stay of execution was granted but conditional upon the Appellant satisfying the conditions imposed by the trial court or else execution would ensue. If the Appellant met the conditions set, the ex-parte judgement would be set aside and the Appellant would be allowed to defend the claim.
The Appeal
15. Being aggrieved and dissatisfied with the ruling of the trial court the Appellant filed a memorandum of appeal dated 22 nd April, 2025 broadly on the grounds that the trial court erred in law and in fact in ordering that he pays throw away costs of Ksh. 10, 000/= after finding that he had not been served. That the order by the trial court to have the Appellant deposit half of the decretal sum with no justifiable cause was tantamount to the appellant being condemned unheard and was a grave miscarriage of justice.
16. The Appellant seeks to have the orders of the learned trial court delivered on the 3 rd April, 2025 set aside, varied and/or quashed. The appellant is also seeking the unconditional release of his motor-vehicle that was attached in execution of the decree issued by the trial court. The Appellant is also seeking the grant of orders that he was seeking vide his application dated 19 th July, 2024 and that further proceedings in Kisii Small Claim No. E108 of 2024, the subject of the present appeal, be heard and determined by another magistrate other than the one who delivered the impugned ruling.
17. Simultaneously, the Appellant filed an application for stay of execution of the Ruling of the trial court dated 25 th April, 2025 pending the hearing and determination of this present appeal which was allowed by this appellate court on 29 th October, 2025 on condition that the Appellant deposits Ksh. 5000/= as security.
18. This appeal was canvassed by way of written submissions with the Appellant filing written submissions dated 28 th April, 2026 while the Respondent filed written submissions dated 27 th April, 2026 .
Appellant’s submissions
19. Counsel for the Appellant argues that the Respondent herein had lodged a claim in the small claims court claiming a sum of Ksh. 1,000,000/= against the appellant arising from an alleged oral agreement whose subject was motor vehicle Registration KDC 373A belonging to the appellant herein. The claim proceeded ex-parte and a judgment entered for the respondent against the appellant.
20. It is submitted that the Appellant only came to know of the default judgement when he was served with a notice of sale of moveable property from Bama Auctioneers. This prompted the Appellant to file the application dated 19 th July, 2025 before the trial court seeking to set aside the default judgement on the grounds that he was not served with the pleadings and mention notice and as such was completely unaware of the proceedings and also that the motor vehicle that was impounded was not the one that was described in the notification of sale of movable property.
21. It is submitted that while the application was considered and the substance of the ruling by the honorable adjudicator was to the effect that indeed the person who was served was a different person other than the appellant herein, the court went ahead and issued orders that the appellant pays Ksh. 10,000/= as thrown away costs and that the Appellant deposit half of the decretal sum amounting to Ksh . 500, 000/= in court within 14 days, without which the orders for stay granted would lapse.
22. Counsel argues that the order as framed was that if the stay lapsed, the respondent was free to proceed with execution. Counsel argues that this was the gravamen of the appeal, that while the substance of the ruling is made in favor of the Appellant, there was no rationale in ordering the appellant to pay thrown away costs and being required to deposit half the decretal sum in court after it was found that the Appellant had not been properly served.
23. It is argued that the orders of the trial court led to a miscarriage of justice in that besides being irregularly ordered to pay thrown away costs and deposit half the decretal sum, the appellant’s motor-vehicle has been improperly impounded and has been detained in a yard for more than a year raising doubts whether the vehicle was still in good condition.
24. It is also argued by counsel for the Appellant that the motor-vehicle impounded has never been proclaimed by the auctioneers. That the motor vehicle captured on the notice of sale is registration number KDC 377A which does not belong to the Appellant whose motor vehicle is registration number KDC 373A. Counsel urges the court to order the release of motor vehicle KDC 373A unconditionally pending the fresh trial and that the appellant should not incur any storage costs at the yard since it was not his mistake.
Respondent’s submissions
25. Counsel for the Respondent begun by placing reliance on the evidence and pleadings before the trial court together with the submissions and authorities filed therein.
26. It is submitted that Order 10 Rule 11 of the Civil Procedure Act permits the court to set aside a default judgment “upon such terms as are just.” Thrown-away costs are compensatory in nature, meant to indemnify a party for costs rendered nugatory by the setting aside of the judgment.
27. Counsel submits that the power to set aside an ex parte judgment is discretionary, and must be exercised judiciously and not capriciously and that the guiding principle is to do justice to the parties while avoiding prejudice. Reliance was placed on the case of Mulinva Masheti v Sophie Wicheta Visao [2019] KEHC 4153 (KLR) which cited Pithon Waweru Maina vs. Thuka Mugiria [1983] eKLR .
28. Counsel asserts that the conditions imposed by the trial court were both lawful and necessary and that thrown away costs are a recognized remedy intended to compensate a party for expenses incurred due to aborted proceedings. It was also argued that thrown away costs are a matter of discretion of the trial court and that an appellate court should not interfere with that discretion lightly. Reliance was placed on the case of Ethics and Anti-Corruption and Economic Crimes Division —vs- Otieno & 5 Others [2023] KEHC 21310 (KLR) .
29. Further, counsel for the Respondent submitted that the requirement to deposit half the decretal sum was to serve as a protective function to secure the Respondent’s claim, prevents abuse of court process, and ensures the appellant is acting in good faith and that courts routinely impose such conditions when setting aside judgments to avoid rendering the successful party without a remedy and that it was not demonstrated that the conditions were excessive, oppressive or impracticable.
30. Finally, counsel for the Respondent submitted that an appellate court will only interfere with the exercise of discretion where it is shown that the court acted on wrong principles, failed to consider relevant factors, considered irrelevant factors, or reached a plainly unjust decision. Reliance was placed on the cases of Mbogo v Shah [1968] EA 93 and Kan Travelers & Anor v Nguto [2026] KEHC 1081 KLR .
Issues for determination
31. From the foregoing, the following issues arise for determination:
i. Whether the default judgement was a regular or irregular one.
ii. What orders should issue.
Analysis and Determination
i. Whether the default judgement was a regular or irregular one.
32. At the onset this court must point out that while the application to set aside the default judgement before the trial court was brought under the provisions of Order 12 Rule 7 of the Civil Procedure Rules ; the procedure for such applications before the Small Claims Court are in fact under the purview of the Small Claims Rules, Rule 11 which provides that:
(4) The Court may set aside a default judgment or any consequential orders given under this rule on the written request of any party that is aggrieved by the decree or order if the Court is satisfied, on evidence given by the applicant, and on hearing the other parties to the proceeding, that
(a) the default was inadvertent;
(b) the applicant has a valid defence with a probability of success; or
(c) there are sufficient grounds to warrant setting aside the default judgment, decree or order.
(5) Where the Court gives an order setting aside default judgment or other consequential orders, the Court may order payment of reasonable costs incurred by the corresponding parties in the proceedings.
33. Be that as it may, however, it must be borne in mind that under common law 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 a default judgment. Such a defendant is entitled to move the court to set aside the default judgment and to grant him leave to defend the suit.
34. The court of appeal in Nderitu & another v Ghikas & another [2016] KECA 470 (KLR) while considering the distinction between a regular and irregular judgment held that;
“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.”
35. A judgement that was entered irregularly is set aside as a matter of right, the rationale for that being that an irregular judgment is set aside not as an indulgence but because the party against whom it was entered was condemned unheard, in violation of the principles of natural justice and even more consequentially, the right to fair trial under Article 50 of the Constitution. The court of appeal in Nderitu & another v Ghikas & another [2016] KECA 470 (KLR) stated that;
“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:
There 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.”
36. Turning my attention to the present matter, it is noteworthy that the deficiency in service is established on two separate occasions. From the proceedings before the trial court on 23 rd May, 2024 the adjudicator noted in proceedings that a certificate of service dated 3 rd May, 2024 bore the handwritten name "Nelson Bosire" and a signature purportedly acknowledging service, notwithstanding that the party required to be served was Paul Machora who is the appellant herein.
37. Secondly, when the trial court directed that service be effected afresh in the proceedings of 23 rd May, 2024 the record shows that the certificate of service relied upon as proof of service in the second instance did not have annexed to it either the mention notice or the pleadings said to have been served, and that the person allegedly served is recorded as having declined to sign the mention notice and pleadings.
38. During the cross-examination before the trial court, the process server confirmed that the statement of claim had not been annexed to the Respondent's replying affidavit, and his account of physical service rested on his own uncorroborated assertion of the appellant’s refusal to sign, with no independent proof that the documents were in fact tendered to the appellant.
39. Taken together, the certificates of service do not support a finding that the Appellant was duly served with the summons and pleadings in Kisii SCCCOMM No. E108 of 2024 . As such the default judgment was irregular and ought to have been set aside by the trial court as a matter of right, on terms that are not conditional upon deposit of any part of the decretal sum, and without inquiry into delay or the existence of a triable defence.
40. It follows, therefore, that the trial court, having made a finding of irregular service, erred in law by nonetheless treating the judgment as a regular one and set it aside while imposing conditions of both thrown-away costs of Kshs. 10,000/= and a deposit of Kshs. 500,000/= (half the decretal sum) as conditions precedent to the setting aside taking effect, and further ordering that the stay of execution would automatically lapse if those conditions were not met within 14 days.
41. It would appear that the trial court, notwithstanding her finding that the appellant was not served, had formed an opinion that the claim had been proved, which begs the question of what purpose the intended trial would have achieved. The conditions imposed upon the appellant effectively locked him out of the seat of justice, whatever defence he had would have been ineffectual if he were to partly satisfy a decretal award borne out of a judgment that had been set aside.
42. What would justify the condition that he meets the costs incurred by the respondent who had defaulted in effecting service. Ideally it would have been the respondent who bears the costs for necessitating proceedings to set aside an irregular judgment occasioned by his omissions.
43. By requiring the appellant to deposit half the decretal sum while his vehicle had been attached and detained pursuant to an irregular judgment, the appellant was subjected to a grave injustice which cannot be allowed to stand.
44. The trial court conflated a regular judgement with an irregular judgement and applied the regular judgment discretionary framework to a judgment it had itself found to be irregular. Further, Rule 11(4) of the Small Claims Court Rules does not contemplate a deposit of the decretal sum as a condition for setting aside; still less does it permit such a condition to be imposed where the very default complained of was not attributable to the applicant's own inadvertence but to a failure of service by the claimant's own process server.
45. The appellant is entitled to have his vehicle released, any costs arising from its attachment and detention shall be borne by the respondent. There is no justification for any continued detention of the vehicle, the irregular judgment having been set aside as of right. In any case the natural consequence of setting aside the underlying default judgment ex debito justitiae will of itself arrest the execution from which the attachment arose, since there will no longer be a decree to execute pending fresh determination of the claim.
46. Accordingly, the upshot is that the appeal has merit and is hereby allowed. The following orders do issue:
a) The ruling of the Small Claims Court in Kisii SCCCOMM No. E108 of 2024 dated 14 th May, 2025, in so far as it imposes the conditions of payment of thrown-away costs of Kshs. 10,000/= and deposit of Kshs. 500,000/= as prerequisites to the setting aside of the default judgment, be and is hereby set aside and substituted with an order that the default judgment dated 11 th June, 2024 be and is hereby set aside unconditionally, ex debito justitiae.
b) That motor vehicle Registration Number KDC 373 A be and is hereby ordered to be immediately released to the appellant unconditionally, any costs arising from its attachment, detention and storage to be borne by the respondent.
c) The matter be and is hereby remitted to the Small Claims Court for hearing on the merits before a different Adjudicator, other than Hon. W.C. Keter, Resident Magistrate, with the Appellant being granted the liberty to file his defence within 15 days.
d) Costs of this appeal are hereby awarded to the Appellant.
Judgment read, dated and delivered virtually at Bungoma High Court this 17 th day September, 2026
Richard K. Koech
JUDGE
In the presence of:
Mr. Mokaya appearing virtually for the Appellant
Mr. Enock Wakhu, C.A.
But in the absence of the Respondent and his counsel
Right of appeal within 30 days.
Page 1Page 1KISII HCCA/E058/2025
IN THE HIGH COURT OF KENYA AT KISII
HCCA NO. E058 OF 2025
PAUL MACHORA…………………………………… APPELLANT
VERSUS
VICTOR NYAMWEYA MOSE…………...…………RESPONDENT
(Being an appeal from the ruling dated 14 th May, 2025 by Hon. W.C.Keter (RM) delivered in Kisii SCCOMM No. E108 of 2024)
JUDGMENT
1. This appeal is against the ruling and order of the Small Claims Court in Kisii SCCCOMM/E108/2024 by Hon. W.C.Keter (Adjudicator) dated 14 th May, 2025 in which the trial court allowed an application dated 19 th July, 2024 brought by the Appellant under the provisions of Sections 1A, 1B, 3, 3A of the Civil Procedure Act and Order 12 Rule 7, Order 51 Rule (1) and Rule 15 of the Civil Procedure Rules seeking to stay and set aside the default judgment dated 11 th June, 2024 .
Background
2. The Application before the trial court and as supported by the sworn affidavit of Paul Machora was broadly on the grounds that on the 11 th June, 2024 the trial court, Hon. C.C.Rono (RM) ,entered a default judgement in the sum Ksh. 1,000,000/= against the Appellant and awarded costs to the Respondent.
3. It was deponed before the trial court that the said judgment was entered in default of appearance and that the Appellant was never served with the pleadings or summons to enter appearance.
4. It was also deponed that the Appellant only came to learn of the default judgement when he was served with a notice of sale of movable property and at the same time his motor-vehicle was impounded without any proclamation. That the warrants of attachment and notice of sale were served upon the applicant on the 17 th July 2024 .
5. The Appellant averred that he was not served either physically or electronically with any pleadings or summons. Further, that it was by reason of the Appellant not being served that he was unaware of the proceedings which consequently led to the default judgement.
6. The application before the trial court was opposed by the Respondent through a replying affidavit sworn by Victor Nyamweya Mose dated 15 th May, 2025 broadly on the grounds that the application was devoid of merit and only meant to delay the quick disposal of the matter. It was deponed that a process server by the name of Peter Ariga had served the Appellant with the pleadings and a mention notice personally on 3 rd May, 2024 and that the Appellant acknowledged service by indicating his name and signing the copies served upon him. The certificate of service was annexed to the affidavit as VNM-1 .
7. The Respondent also deponed before the trial court that upon being directed to effect service a second time, on 23 rd May, 2024 service was effected again on 24 th May, 2024 and the certificate of service was annexed to the affidavit as VNM-2 . Further that when the matter was mentioned before the trial court on 6 th June, 2024 the 14-day statutory period to enter appearance had not lapsed thus a further mention date was set. It is also averred that the Appellant was served with a mention notice for the mention date of 6 th June, 2024 and the respondent annexed a certificate of service (see the annexure marked as “ VNM-3.”)
8. The Respondent deponed before the trial court that on 11 th June, 2024 a default judgement was entered in his favour once the court was satisfied of the service upon the applicant. Further that a Notice of Entry of Judgement was served upon the Applicant. The certificate of service has annexed to the Respondent’s affidavit filed before the trial court. Thereafter execution proceedings commenced against the appellant leading to the attachment of the Appellant’s motor-vehicle so as to settle the decretal sum.
9. In a supplementary affidavit sworn before the trial court on 10 th September, 2024 pursuant to leave granted on 10 th September, 2024 the Appellant deponed that contrary to the averments in the certificate of service he’s been acquainted or known to the process server one Peter Ariga and that the statement by the process server that he served him at his office at the SDA conference at Nyanchwa was materially false as he has never had an office at Nyanchwa. He explained that Nyanchwa is their headquarters and that only the executive leadership of his church had offices there and that he was not part of the said executive leadership.
10. The Appellant deponed that he worked as a district pastor of the SDA Church South Kenya Conference and was based at the Riana District of the SDA church and that Riana was in Bonchari Constituency. He annexed a letter from the South SDA Kenya Conference transferring him to Riana district with effect from 31 st December, 2022 . He also deponed that he had a draft defence on record that raised triable issues.
11. The Application before the trial court came up for hearing on the 17 th October, 2024 whereupon the process server was cross examined by the Appellant’s advocate. Peter Aringa Mokaya testified that he was a process server working in a law firm and that he was referred to Nyanchwa SDA Conference in Nyanchwa town.
12. On cross-examination, the process server was referred to the certificate of service dated 3 rd May, 2024 where he confirmed that he had served the mention notice dated 20 th April, 2024 and the statement of claim and annexures. He conceded, however, that he had not annexed the statement of claim to the Respondent’s replying affidavit. Further, he reiterated that he had met the Appellant at his office in Nyanchwa and that he wrote his name, signed and dated the statement of claim which he had then annexed to the replying affidavit. He further testified that when he effected service on two other occasions, the Appellant declined to sign.
13. The Trial court delivered in ruling on the 14 th May, 2025 finding that while the Certificates of Service indicated that the Appellant was served with the court processes physically, the certificate of service dated 3 rd May, 2024 showed that the name Nelson Bosire was handwritten thereon and a signature appended thereto dated 3 rd May, 2025 .
14. The trial court found that the Appellant’s name was Paul Machora and not Nelson Bosire and concluded that service may have been effected on someone else and that the other court processes may have been served on someone else as well. The ex-parte judgement was set aside on conditional basis that the Appellant would deposit half of the decretal sum (Ksh. 500, 000/=) and pay throw away costs of Ksh. 10, 000/= to the Respondent within 14 days from the date of the ruling. A stay of execution was granted but conditional upon the Appellant satisfying the conditions imposed by the trial court or else execution would ensue. If the Appellant met the conditions set, the ex-parte judgement would be set aside and the Appellant would be allowed to defend the claim.
The Appeal
15. Being aggrieved and dissatisfied with the ruling of the trial court the Appellant filed a memorandum of appeal dated 22 nd April, 2025 broadly on the grounds that the trial court erred in law and in fact in ordering that he pays throw away costs of Ksh. 10, 000/= after finding that he had not been served. That the order by the trial court to have the Appellant deposit half of the decretal sum with no justifiable cause was tantamount to the appellant being condemned unheard and was a grave miscarriage of justice.
16. The Appellant seeks to have the orders of the learned trial court delivered on the 3 rd April, 2025 set aside, varied and/or quashed. The appellant is also seeking the unconditional release of his motor-vehicle that was attached in execution of the decree issued by the trial court. The Appellant is also seeking the grant of orders that he was seeking vide his application dated 19 th July, 2024 and that further proceedings in Kisii Small Claim No. E108 of 2024, the subject of the present appeal, be heard and determined by another magistrate other than the one who delivered the impugned ruling.
17. Simultaneously, the Appellant filed an application for stay of execution of the Ruling of the trial court dated 25 th April, 2025 pending the hearing and determination of this present appeal which was allowed by this appellate court on 29 th October, 2025 on condition that the Appellant deposits Ksh. 5000/= as security.
18. This appeal was canvassed by way of written submissions with the Appellant filing written submissions dated 28 th April, 2026 while the Respondent filed written submissions dated 27 th April, 2026 .
Appellant’s submissions
19. Counsel for the Appellant argues that the Respondent herein had lodged a claim in the small claims court claiming a sum of Ksh. 1,000,000/= against the appellant arising from an alleged oral agreement whose subject was motor vehicle Registration KDC 373A belonging to the appellant herein. The claim proceeded ex-parte and a judgment entered for the respondent against the appellant.
20. It is submitted that the Appellant only came to know of the default judgement when he was served with a notice of sale of moveable property from Bama Auctioneers. This prompted the Appellant to file the application dated 19 th July, 2025 before the trial court seeking to set aside the default judgement on the grounds that he was not served with the pleadings and mention notice and as such was completely unaware of the proceedings and also that the motor vehicle that was impounded was not the one that was described in the notification of sale of movable property.
21. It is submitted that while the application was considered and the substance of the ruling by the honorable adjudicator was to the effect that indeed the person who was served was a different person other than the appellant herein, the court went ahead and issued orders that the appellant pays Ksh. 10,000/= as thrown away costs and that the Appellant deposit half of the decretal sum amounting to Ksh . 500, 000/= in court within 14 days, without which the orders for stay granted would lapse.
22. Counsel argues that the order as framed was that if the stay lapsed, the respondent was free to proceed with execution. Counsel argues that this was the gravamen of the appeal, that while the substance of the ruling is made in favor of the Appellant, there was no rationale in ordering the appellant to pay thrown away costs and being required to deposit half the decretal sum in court after it was found that the Appellant had not been properly served.
23. It is argued that the orders of the trial court led to a miscarriage of justice in that besides being irregularly ordered to pay thrown away costs and deposit half the decretal sum, the appellant’s motor-vehicle has been improperly impounded and has been detained in a yard for more than a year raising doubts whether the vehicle was still in good condition.
24. It is also argued by counsel for the Appellant that the motor-vehicle impounded has never been proclaimed by the auctioneers. That the motor vehicle captured on the notice of sale is registration number KDC 377A which does not belong to the Appellant whose motor vehicle is registration number KDC 373A. Counsel urges the court to order the release of motor vehicle KDC 373A unconditionally pending the fresh trial and that the appellant should not incur any storage costs at the yard since it was not his mistake.
Respondent’s submissions
25. Counsel for the Respondent begun by placing reliance on the evidence and pleadings before the trial court together with the submissions and authorities filed therein.
26. It is submitted that Order 10 Rule 11 of the Civil Procedure Act permits the court to set aside a default judgment “upon such terms as are just.” Thrown-away costs are compensatory in nature, meant to indemnify a party for costs rendered nugatory by the setting aside of the judgment.
27. Counsel submits that the power to set aside an ex parte judgment is discretionary, and must be exercised judiciously and not capriciously and that the guiding principle is to do justice to the parties while avoiding prejudice. Reliance was placed on the case of Mulinva Masheti v Sophie Wicheta Visao [2019] KEHC 4153 (KLR) which cited Pithon Waweru Maina vs. Thuka Mugiria [1983] eKLR .
28. Counsel asserts that the conditions imposed by the trial court were both lawful and necessary and that thrown away costs are a recognized remedy intended to compensate a party for expenses incurred due to aborted proceedings. It was also argued that thrown away costs are a matter of discretion of the trial court and that an appellate court should not interfere with that discretion lightly. Reliance was placed on the case of Ethics and Anti-Corruption and Economic Crimes Division —vs- Otieno & 5 Others [2023] KEHC 21310 (KLR) .
29. Further, counsel for the Respondent submitted that the requirement to deposit half the decretal sum was to serve as a protective function to secure the Respondent’s claim, prevents abuse of court process, and ensures the appellant is acting in good faith and that courts routinely impose such conditions when setting aside judgments to avoid rendering the successful party without a remedy and that it was not demonstrated that the conditions were excessive, oppressive or impracticable.
30. Finally, counsel for the Respondent submitted that an appellate court will only interfere with the exercise of discretion where it is shown that the court acted on wrong principles, failed to consider relevant factors, considered irrelevant factors, or reached a plainly unjust decision. Reliance was placed on the cases of Mbogo v Shah [1968] EA 93 and Kan Travelers & Anor v Nguto [2026] KEHC 1081 KLR .
Issues for determination
31. From the foregoing, the following issues arise for determination:
i. Whether the default judgement was a regular or irregular one.
ii. What orders should issue.
Analysis and Determination
i. Whether the default judgement was a regular or irregular one.
32. At the onset this court must point out that while the application to set aside the default judgement before the trial court was brought under the provisions of Order 12 Rule 7 of the Civil Procedure Rules ; the procedure for such applications before the Small Claims Court are in fact under the purview of the Small Claims Rules, Rule 11 which provides that:
(4) The Court may set aside a default judgment or any consequential orders given under this rule on the written request of any party that is aggrieved by the decree or order if the Court is satisfied, on evidence given by the applicant, and on hearing the other parties to the proceeding, that
(a) the default was inadvertent;
(b) the applicant has a valid defence with a probability of success; or
(c) there are sufficient grounds to warrant setting aside the default judgment, decree or order.
(5) Where the Court gives an order setting aside default judgment or other consequential orders, the Court may order payment of reasonable costs incurred by the corresponding parties in the proceedings.
33. Be that as it may, however, it must be borne in mind that under common law 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 a default judgment. Such a defendant is entitled to move the court to set aside the default judgment and to grant him leave to defend the suit.
34. The court of appeal in Nderitu & another v Ghikas & another [2016] KECA 470 (KLR) while considering the distinction between a regular and irregular judgment held that;
“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.”
35. A judgement that was entered irregularly is set aside as a matter of right, the rationale for that being that an irregular judgment is set aside not as an indulgence but because the party against whom it was entered was condemned unheard, in violation of the principles of natural justice and even more consequentially, the right to fair trial under Article 50 of the Constitution. The court of appeal in Nderitu & another v Ghikas & another [2016] KECA 470 (KLR) stated that;
“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:
There 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.”
36. Turning my attention to the present matter, it is noteworthy that the deficiency in service is established on two separate occasions. From the proceedings before the trial court on 23 rd May, 2024 the adjudicator noted in proceedings that a certificate of service dated 3 rd May, 2024 bore the handwritten name "Nelson Bosire" and a signature purportedly acknowledging service, notwithstanding that the party required to be served was Paul Machora who is the appellant herein.
37. Secondly, when the trial court directed that service be effected afresh in the proceedings of 23 rd May, 2024 the record shows that the certificate of service relied upon as proof of service in the second instance did not have annexed to it either the mention notice or the pleadings said to have been served, and that the person allegedly served is recorded as having declined to sign the mention notice and pleadings.
38. During the cross-examination before the trial court, the process server confirmed that the statement of claim had not been annexed to the Respondent's replying affidavit, and his account of physical service rested on his own uncorroborated assertion of the appellant’s refusal to sign, with no independent proof that the documents were in fact tendered to the appellant.
39. Taken together, the certificates of service do not support a finding that the Appellant was duly served with the summons and pleadings in Kisii SCCCOMM No. E108 of 2024 . As such the default judgment was irregular and ought to have been set aside by the trial court as a matter of right, on terms that are not conditional upon deposit of any part of the decretal sum, and without inquiry into delay or the existence of a triable defence.
40. It follows, therefore, that the trial court, having made a finding of irregular service, erred in law by nonetheless treating the judgment as a regular one and set it aside while imposing conditions of both thrown-away costs of Kshs. 10,000/= and a deposit of Kshs. 500,000/= (half the decretal sum) as conditions precedent to the setting aside taking effect, and further ordering that the stay of execution would automatically lapse if those conditions were not met within 14 days.
41. It would appear that the trial court, notwithstanding her finding that the appellant was not served, had formed an opinion that the claim had been proved, which begs the question of what purpose the intended trial would have achieved. The conditions imposed upon the appellant effectively locked him out of the seat of justice, whatever defence he had would have been ineffectual if he were to partly satisfy a decretal award borne out of a judgment that had been set aside.
42. What would justify the condition that he meets the costs incurred by the respondent who had defaulted in effecting service. Ideally it would have been the respondent who bears the costs for necessitating proceedings to set aside an irregular judgment occasioned by his omissions.
43. By requiring the appellant to deposit half the decretal sum while his vehicle had been attached and detained pursuant to an irregular judgment, the appellant was subjected to a grave injustice which cannot be allowed to stand.
44. The trial court conflated a regular judgement with an irregular judgement and applied the regular judgment discretionary framework to a judgment it had itself found to be irregular. Further, Rule 11(4) of the Small Claims Court Rules does not contemplate a deposit of the decretal sum as a condition for setting aside; still less does it permit such a condition to be imposed where the very default complained of was not attributable to the applicant's own inadvertence but to a failure of service by the claimant's own process server.
45. The appellant is entitled to have his vehicle released, any costs arising from its attachment and detention shall be borne by the respondent. There is no justification for any continued detention of the vehicle, the irregular judgment having been set aside as of right. In any case the natural consequence of setting aside the underlying default judgment ex debito justitiae will of itself arrest the execution from which the attachment arose, since there will no longer be a decree to execute pending fresh determination of the claim.
46. Accordingly, the upshot is that the appeal has merit and is hereby allowed. The following orders do issue:
a) The ruling of the Small Claims Court in Kisii SCCCOMM No. E108 of 2024 dated 14 th May, 2025, in so far as it imposes the conditions of payment of thrown-away costs of Kshs. 10,000/= and deposit of Kshs. 500,000/= as prerequisites to the setting aside of the default judgment, be and is hereby set aside and substituted with an order that the default judgment dated 11 th June, 2024 be and is hereby set aside unconditionally, ex debito justitiae.
b) That motor vehicle Registration Number KDC 373 A be and is hereby ordered to be immediately released to the appellant unconditionally, any costs arising from its attachment, detention and storage to be borne by the respondent.
c) The matter be and is hereby remitted to the Small Claims Court for hearing on the merits before a different Adjudicator, other than Hon. W.C. Keter, Resident Magistrate, with the Appellant being granted the liberty to file his defence within 15 days.
d) Costs of this appeal are hereby awarded to the Appellant.
Judgment read, dated and delivered virtually at Bungoma High Court this 17 th day September, 2026
Richard K. Koech
JUDGE
In the presence of:
Mr. Mokaya appearing virtually for the Appellant
Mr. Enock Wakhu, C.A.
But in the absence of the Respondent and his counsel
Right of appeal within 30 days.
Page 1Page 1KISII HCCA/E058/2025