(Being an Appeal from the Ruling and Order of Hon. Becky Cheloti (PM) delivered on 28 th January 2025 in Milimani Commercial Civil Suit No. E510 of 2020)
Introduction
1. This appeal arises from the judgment of Milimani Commercial Court at Milimani ( Becky Cheloti, PM ) delivered on 28 th January 2025 in Milimani CMCC No. E510 of 2020.
2. The appellant alleged that, upon request from the appellant, the 2 nd and 3 rd respondents, he entered into various agreements with them, advancing a total of Kshs, 5,850,000/- for purposes of incorporating the 4 th respondent to enable them run their business. However, the appellant, the 2 nd and 3 rd respondents, breached the agreements and failed to refund the said monies, including using the loan for their personal use.
Background
3. Subsequently, the 1 st respondent filed Milimani MCCC No. E510 of 2020 for recovery of the loan, Kshs.285,000/- being costs for investigations into the location of the appellant, the 2 nd and 3 rd respondents, Kshs.150,000/- being costs incurred in hiring debt collectors, special and general damages, interest and costs of the suit.
4. Subsequently, the 1 st respondent filed 2 applications dated 16 th November 2020 and 1 st December 2020 seeking orders for the appellant, the 2 nd and 3 rd respondents to furnish security for their attendance in court or for orders to deposit the loan amount into court. This application was based on the 1 st respondent’s apprehension that the appellant, the 2 nd and 3 rd respondents, were liquidating their assets and moving their business to South Africa, which would have frustrated the 1 st respondent’s attempts to recover his monies. The appellant, the 2 nd and 3 rd respondents, through Odero Osiemo & Co. Advocates, lodged a memorandum of appearance and opposed the application vide their replying affidavit sworn on 7 th December 2020 by the 2 nd respondent and filed by Odero & Osiemo Advocates.
5. There is no indication from the record as to what transpired to this application.
6. That said, the proceedings indicate that the appellant, the 2 nd and 3 rd respondents were represented in court where several indications were made that parties were negotiating an out-of-court settlement. There was also communication that they were willing to offer a piece of property in Kitengela towards settling the dispute. However, these efforts were not fruitful. On 12 th February 2024, the parties requested time to record a consent and the matter was slated for mention on 14 th March 2024. However, on the said date, only the 1 st respondent’s counsel was present and he informed the trial court that the settlement proposal was not amenable to them. Accordingly, he proceeded to request for entry of judgment which was done.
7. It would appear that the appellant, the 2 nd and 3 rd respondents, did not file their defence leading the appellant to file a request for judgment dated 18 th January 2024.
8. Subsequently, the appellant ‘appointed’ the firm of Kinyua Mwaniki & Wainaina Advocates vide a notice of appointment of advocates dated 19 th August 2024, to act on his behalf in the matter. The 3 rd respondent, (Mary) also appointed the firm of Kangethe Waitere & Co. Advocates, who filed an application dated 22 nd August 2024 seeking stay of execution and setting aside of the interlocutory judgment, leave to defend and leave for the firm of Ms. Kang’ethe Waitere & Co. Advocates to come on record for her. This application was based on the grounds that she was not served with the summons to enter appearance neither did she instruct Odero Osiemo & Co. Advocates to act for her. Moreover, the 1 st respondent allegedly proceeded to proclaim her goods without issuing her with a notice to execute or notice of entry of judgment. Further, she claimed that she only became aware of the suit on 19 th August 2024 when she was served with a proclamation by the 2 nd respondent via WhatsApp. She also faulted the interlocutory judgment as the trial Magistrate failed to proceed with formal proof since the claim was an unliquidated claim. Together with the application, the 3 rd respondent attached a draft defence denying the 1 st respondent’s claim.
9. Equally, the appellant filed a similar application dated 22 nd August 2024 founded on similar grounds. He added that there was no evidence that the summons to enter appearance was collected and served upon the appellant, the 2 nd and 3 rd respondents; neither was there evidence of a request for judgment.
10. The 1 st respondent opposed the appellant’s application vide a replying affidavit sworn by his counsel on 13 th September (year unspecified). In the said response, the efforts made in the matter were detailed, including communication from the counsels on out-of-court attempts and a change of counsel by the appellant, the 2 nd and 3 rd respondents from Odero Osiemo & Co. Advocates to Kago Mburu & Associates Advocates. It was averred that on 9 th September 2024, the 1 st respondent’s counsel wrote to Odero Osiemo & Co. Advocates to clarify whether it indeed had instructions to receive summons and act for the appellant, the 2 nd and 3 rd respondents, who responded in the affirmative.
11. By a Ruling delivered on 28 th January 2025, the trial court dismissed both applications, holding that the appellant and 3 rd respondent failed to prove that they had not instructed the firm of Odero Osiemo & Co. Advocates to act for them. The trial court further held that the appellant and 3 rd respondent, despite claiming that the 2 nd respondent did not have any authority to appoint counsel on their behalf, not only did the letter dated 13 th September 2024 from the 1 st respondent’s counsel indicate otherwise, but they also failed to prove that the 2 nd respondent indeed lacked such authority.
12. Further to the foregoing, the trial court took the position that given that the firm of Odero Osiemo & Co. Advocates was properly on record, under Order 9 Rule 9 of the Civil Procedure Rules, a litigant could only change representation upon seeking leave of the court or obtaining the written consent of the outgoing firm of advocates. The trial Magistrate held that the appellant and 3 rd respondent disregarded this principle, with the effect that both applications were not properly on record.
The Appeal
13. Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 29 th January 2025 raising several grounds of appeal, to wit, that the learned trial Magistrate erred in law and fact:
i. In dismissing the appellant’s application to set aside the interlocutory judgment entered against him.
ii. In failing to find that the appellant was not served with summons to enter appearance as is required and therefore set aside the judgment entered as a matter of right.
iii. In failing to find that the appellant did not instruct any advocate to represent him in the suit filed.
iv. In failing to find that the appellant had a prima facie defence against the 1 st respondent’s claim.
v. In failing to give a chance to the appellant to be heard in defence against the 1 st respondent’s claim.
vi. In refusing the appellant his constitutional right to be heard in a Court of law.
vii. In finding that the appellant had instructed advocates to defend him in the suit.
viii. In failing to analyse the application, the replying affidavit and the submissions made and thereby making a wrong finding in law.
ix. In failing to find that the judgment entered is quite prejudicial to the appellant.
x. In failing to find that the appellant was not served with a Notice of Judgment as is required.
xi. In failing to find that the 1 st respondent did not have a judgment which he could execute.
xii. In not following the correct and legal principles and thereby arriving as a bad decision.
14. Consequently, the appellant urged this Court to allow the appeal, set aside the ruling of the trial court and order that the suit proceed to full trial.
The Appellant’s Submissions
15. In his submissions dated 11 th November 2025, the appellant submitted that the memorandum of appearance by Odero Osiemo & Co. Advocates and notice of change of advocates by Kago Mburu & Co. Advocates did not reflect that they were appearing for him and were therefore defective.
16. He further asserted that the burden of proof fell on Odero Osiemo & Co. Advocates and Kago Mburu & Co. Advocates to prove that they were instructed by the appellant. He added that as per the holding in Ochieng’ Onyango, Kibet & Ohaga Advocates Vs Akiba Bank Limited [2007] KEHC 2677 (KLR), where a retainer can only be proved by the oral testimony of counsel, then the court will treat such counsel as having not acquired the requisite authority. What is more, he urged, the letter dated 13 th September 2024 merely indicated that the 2 nd respondent instructed the said firms on behalf of the appellant but that the 2 nd respondent did not swear an affidavit affirming the same, nor did the appellant authorize the 2 nd respondent to instruct counsel on his behalf. In addition, the appellant pointed out that the notice of change by Kago Mburu & Co. Advocates was only with respect to the 2 nd respondent. Building on this, the appellant averred that the provisions of Order 9 Rule 9 of the Civil Procedure Rules therefore did not apply to him, not to mention that the firm of appellant’s counsel had allegedly already filed a notice of appointment dated 19 th August 2024.
17. It was the appellant’s submission that summons was neither collected nor served, going by the affidavit of service sworn on 26 th November 2020 by Evans Ouma, a court process server. In his view, the judgment was irregular and ought to be set aside.
18. The appellant added that even with a regular judgment on record, it behooved the court to consider the defence on record. He argued that the trial court ignored his defence, which, in his view, raised triable issues that ought to have been heard on merit. He asserted that he was a stranger to the 1 st respondent; nor was there any resolution by the 4 th respondent regarding borrowing money from the 1 st respondent.
19. Lastly, the appellant submitted that he sought an unliquidated claim which ought to have proceeded for formal proof. He refuted the 1 st respondent’s claim that he made an oral application on 14 th March 2024 to withdraw the claim for general damages as the same is not captured in the proceedings. Furthermore, he urged that the 1 st respondent’s claim for Kshs.6,285,000/- was unsubstantiated and unexplained. It was his case that the 1 st respondent did not specify what was owed to him; rather, his claim was for taking of accounts. Besides, he added, he was not served with a notice of entry of judgment under Order 22 Rule 6 of the Civil Procedure Rules as required by law.
The Respondents’ Submissions
20. Despite service, the respondents did not file any documents in response to the appeal.
Analysis and Determination
21. This being a first appeal, this Court’s duty is to analyze and re-assess the evidence on record and reach its own conclusions in the matter, as set out succinctly in Selle v. Associated Motor Boat Co. [1968] EA 123 .
22. I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein. I find that the appeal raises the following issues for consideration:
a. Whether the appellant’s application was properly on record.
b. Whether the trial court correctly exercised her discretion in dismissing the appellant’s application for leave to defend and effectively reinstating the ex-parte judgment.
c. What orders should issue?
23. The appellant contended that he had not instructed Odero Osiemo & Co. Advocates or Kago Mburu & Co. Advocates to act on his behalf and had not authorized the 2 nd respondent to appoint counsel for him. The Trial Court nevertheless held that the application was improperly on record for failure to comply with Order 9 rule 9 of the Civil Procedure Rules.
24. To resolve this, I must start by first determining whether the firms of Odero Osiemo and Kago Mburu were properly on record for the appellant. While I agree with the trial court that the appellant bore the onus of proving that he did not instruct the said firms, the letter dated 13 th September 2024 attached to the 1 st respondent’s replying affidavit indicates that the 2 nd respondent instructed counsel on behalf of the appellant. There was nothing in the letter or in the documents adduced to indicate that the 2 nd respondent had authority to do so neither was any authority tabled to affirm that the 2 nd respondent had authority to plead or act on behalf of the appellant. Order 1 Rule 8 equally would not apply, as a party who commences or continues a suit on behalf of another against another must give notice of the same to such person. This is not evidenced in the pleadings before this Court.
25. In addition, the Trial Court held that the application was improperly on record since the appellant’s counsel did not seek leave or file a consent executed by the ‘outgoing’ firm of advocates. Having established that the appellant did not instruct the firms of Odero Osiemo and Kago Mburu, I find that Order 9 Rule 9 does not apply. Even assuming I am wrong, prayer 5 of the appellant’s application expressly sought leave for his advocates to come on record, which, under Order 9 Rule 10, ought to have been determined in the first instance. I accordingly find that the appellant’s application dated 22nd August 2024 was properly before the trial court.
26. I now turn to whether the trial court properly declined to set aside the interlocutory judgment. The starting point is whether the judgment was regular. In Nderitu & Another vs Ghikas & Another (Civil Appeal 6 of 2015) [2016] KECA 470 (KLR), the Court of Appeal distinguished between a regular and an irregular judgment, and the attendant consequences. It stated thus:
“40. … 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).
41. In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo v. Attorney General [1986-1989] EA 456). The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711:
“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
27. I note that the appellant contends that summons was not taken out or served upon him. In his view, the judgment on record was irregular and liable to be set aside debito justitiae . I find merit in that contention. The proceedings of 14 th March 2023 support the appellant’s position, while the affidavit of service indicates that the process server relied on instructions from the 2 nd respondent that service upon the email addresses provided by him was sufficient. There is, however, no evidence that the appellant was served or that the 2 nd respondent had authority to accept service on his behalf.
28. In the circumstances, I find and hold that summons was neither taken out nor served upon the appellant. The centrality of service of summons cannot be overstated. It is the mechanism through which a litigant is first made aware of proceedings against them, and it is therefore inseparable from the right of access to justice under Article 48 and the right to a fair hearing under Article 50(1) of the Constitution. As this Court has already observed in citing Nderitu & Another v Ghikas & Another above, the right to be heard before an adverse decision is taken permeates our entire justice system, and a litigant ought not to be condemned unheard on account of a procedural failure attributable to no fault of their own. This Court cannot, therefore, countenance a finding that would leave the appellant bound by a judgment entered in proceedings of which he was never properly made aware.
29. The position would have been different if the summons was not taken out, but the appellant had nonetheless submitted himself to the jurisdiction of the court. In such a case, his submission to the court’s jurisdiction would not have been a basis to cast away the interlocutory judgment. See Ereri Company Limited vs Simon Kamau Gitau & 7 Others [2012] KEHC 1309 (KLR)
30. Accordingly, the resulting judgment entered was irregular, and the trial court had a judicial duty to set it aside ex debito justitiae , as a matter of right. The fact that the appellant may have had a draft defence raising triable issues does not alter that conclusion. Where a default judgment is irregular, the question whether the intended defence raises triable issues does not arise. The appellant was entitled to have the judgment set aside as a matter of right. See Nderitu & Another vs Ghikas & Another (Supra)
31. The appeal therefore succeeds. The interlocutory judgment and all consequential orders are hereby set aside. The appellant shall have costs of the appeal.
It is so ordered.
Dated, Delivered and Signed at Nairobi this 17 th day of September 2026.
Introduction
1. This appeal arises from the judgment of Milimani Commercial Court at Milimani ( Becky Cheloti, PM ) delivered on 28 th January 2025 in Milimani CMCC No. E510 of 2020.
2. The appellant alleged that, upon request from the appellant, the 2 nd and 3 rd respondents, he entered into various agreements with them, advancing a total of Kshs, 5,850,000/- for purposes of incorporating the 4 th respondent to enable them run their business. However, the appellant, the 2 nd and 3 rd respondents, breached the agreements and failed to refund the said monies, including using the loan for their personal use.
Background
3. Subsequently, the 1 st respondent filed Milimani MCCC No. E510 of 2020 for recovery of the loan, Kshs.285,000/- being costs for investigations into the location of the appellant, the 2 nd and 3 rd respondents, Kshs.150,000/- being costs incurred in hiring debt collectors, special and general damages, interest and costs of the suit.
4. Subsequently, the 1 st respondent filed 2 applications dated 16 th November 2020 and 1 st December 2020 seeking orders for the appellant, the 2 nd and 3 rd respondents to furnish security for their attendance in court or for orders to deposit the loan amount into court. This application was based on the 1 st respondent’s apprehension that the appellant, the 2 nd and 3 rd respondents, were liquidating their assets and moving their business to South Africa, which would have frustrated the 1 st respondent’s attempts to recover his monies. The appellant, the 2 nd and 3 rd respondents, through Odero Osiemo & Co. Advocates, lodged a memorandum of appearance and opposed the application vide their replying affidavit sworn on 7 th December 2020 by the 2 nd respondent and filed by Odero & Osiemo Advocates.
5. There is no indication from the record as to what transpired to this application.
6. That said, the proceedings indicate that the appellant, the 2 nd and 3 rd respondents were represented in court where several indications were made that parties were negotiating an out-of-court settlement. There was also communication that they were willing to offer a piece of property in Kitengela towards settling the dispute. However, these efforts were not fruitful. On 12 th February 2024, the parties requested time to record a consent and the matter was slated for mention on 14 th March 2024. However, on the said date, only the 1 st respondent’s counsel was present and he informed the trial court that the settlement proposal was not amenable to them. Accordingly, he proceeded to request for entry of judgment which was done.
7. It would appear that the appellant, the 2 nd and 3 rd respondents, did not file their defence leading the appellant to file a request for judgment dated 18 th January 2024.
8. Subsequently, the appellant ‘appointed’ the firm of Kinyua Mwaniki & Wainaina Advocates vide a notice of appointment of advocates dated 19 th August 2024, to act on his behalf in the matter. The 3 rd respondent, (Mary) also appointed the firm of Kangethe Waitere & Co. Advocates, who filed an application dated 22 nd August 2024 seeking stay of execution and setting aside of the interlocutory judgment, leave to defend and leave for the firm of Ms. Kang’ethe Waitere & Co. Advocates to come on record for her. This application was based on the grounds that she was not served with the summons to enter appearance neither did she instruct Odero Osiemo & Co. Advocates to act for her. Moreover, the 1 st respondent allegedly proceeded to proclaim her goods without issuing her with a notice to execute or notice of entry of judgment. Further, she claimed that she only became aware of the suit on 19 th August 2024 when she was served with a proclamation by the 2 nd respondent via WhatsApp. She also faulted the interlocutory judgment as the trial Magistrate failed to proceed with formal proof since the claim was an unliquidated claim. Together with the application, the 3 rd respondent attached a draft defence denying the 1 st respondent’s claim.
9. Equally, the appellant filed a similar application dated 22 nd August 2024 founded on similar grounds. He added that there was no evidence that the summons to enter appearance was collected and served upon the appellant, the 2 nd and 3 rd respondents; neither was there evidence of a request for judgment.
10. The 1 st respondent opposed the appellant’s application vide a replying affidavit sworn by his counsel on 13 th September (year unspecified). In the said response, the efforts made in the matter were detailed, including communication from the counsels on out-of-court attempts and a change of counsel by the appellant, the 2 nd and 3 rd respondents from Odero Osiemo & Co. Advocates to Kago Mburu & Associates Advocates. It was averred that on 9 th September 2024, the 1 st respondent’s counsel wrote to Odero Osiemo & Co. Advocates to clarify whether it indeed had instructions to receive summons and act for the appellant, the 2 nd and 3 rd respondents, who responded in the affirmative.
11. By a Ruling delivered on 28 th January 2025, the trial court dismissed both applications, holding that the appellant and 3 rd respondent failed to prove that they had not instructed the firm of Odero Osiemo & Co. Advocates to act for them. The trial court further held that the appellant and 3 rd respondent, despite claiming that the 2 nd respondent did not have any authority to appoint counsel on their behalf, not only did the letter dated 13 th September 2024 from the 1 st respondent’s counsel indicate otherwise, but they also failed to prove that the 2 nd respondent indeed lacked such authority.
12. Further to the foregoing, the trial court took the position that given that the firm of Odero Osiemo & Co. Advocates was properly on record, under Order 9 Rule 9 of the Civil Procedure Rules, a litigant could only change representation upon seeking leave of the court or obtaining the written consent of the outgoing firm of advocates. The trial Magistrate held that the appellant and 3 rd respondent disregarded this principle, with the effect that both applications were not properly on record.
The Appeal
13. Dissatisfied with the trial court’s decision, the appellant filed a Memorandum of Appeal dated 29 th January 2025 raising several grounds of appeal, to wit, that the learned trial Magistrate erred in law and fact:
i. In dismissing the appellant’s application to set aside the interlocutory judgment entered against him.
ii. In failing to find that the appellant was not served with summons to enter appearance as is required and therefore set aside the judgment entered as a matter of right.
iii. In failing to find that the appellant did not instruct any advocate to represent him in the suit filed.
iv. In failing to find that the appellant had a prima facie defence against the 1 st respondent’s claim.
v. In failing to give a chance to the appellant to be heard in defence against the 1 st respondent’s claim.
vi. In refusing the appellant his constitutional right to be heard in a Court of law.
vii. In finding that the appellant had instructed advocates to defend him in the suit.
viii. In failing to analyse the application, the replying affidavit and the submissions made and thereby making a wrong finding in law.
ix. In failing to find that the judgment entered is quite prejudicial to the appellant.
x. In failing to find that the appellant was not served with a Notice of Judgment as is required.
xi. In failing to find that the 1 st respondent did not have a judgment which he could execute.
xii. In not following the correct and legal principles and thereby arriving as a bad decision.
14. Consequently, the appellant urged this Court to allow the appeal, set aside the ruling of the trial court and order that the suit proceed to full trial.
The Appellant’s Submissions
15. In his submissions dated 11 th November 2025, the appellant submitted that the memorandum of appearance by Odero Osiemo & Co. Advocates and notice of change of advocates by Kago Mburu & Co. Advocates did not reflect that they were appearing for him and were therefore defective.
16. He further asserted that the burden of proof fell on Odero Osiemo & Co. Advocates and Kago Mburu & Co. Advocates to prove that they were instructed by the appellant. He added that as per the holding in Ochieng’ Onyango, Kibet & Ohaga Advocates Vs Akiba Bank Limited [2007] KEHC 2677 (KLR), where a retainer can only be proved by the oral testimony of counsel, then the court will treat such counsel as having not acquired the requisite authority. What is more, he urged, the letter dated 13 th September 2024 merely indicated that the 2 nd respondent instructed the said firms on behalf of the appellant but that the 2 nd respondent did not swear an affidavit affirming the same, nor did the appellant authorize the 2 nd respondent to instruct counsel on his behalf. In addition, the appellant pointed out that the notice of change by Kago Mburu & Co. Advocates was only with respect to the 2 nd respondent. Building on this, the appellant averred that the provisions of Order 9 Rule 9 of the Civil Procedure Rules therefore did not apply to him, not to mention that the firm of appellant’s counsel had allegedly already filed a notice of appointment dated 19 th August 2024.
17. It was the appellant’s submission that summons was neither collected nor served, going by the affidavit of service sworn on 26 th November 2020 by Evans Ouma, a court process server. In his view, the judgment was irregular and ought to be set aside.
18. The appellant added that even with a regular judgment on record, it behooved the court to consider the defence on record. He argued that the trial court ignored his defence, which, in his view, raised triable issues that ought to have been heard on merit. He asserted that he was a stranger to the 1 st respondent; nor was there any resolution by the 4 th respondent regarding borrowing money from the 1 st respondent.
19. Lastly, the appellant submitted that he sought an unliquidated claim which ought to have proceeded for formal proof. He refuted the 1 st respondent’s claim that he made an oral application on 14 th March 2024 to withdraw the claim for general damages as the same is not captured in the proceedings. Furthermore, he urged that the 1 st respondent’s claim for Kshs.6,285,000/- was unsubstantiated and unexplained. It was his case that the 1 st respondent did not specify what was owed to him; rather, his claim was for taking of accounts. Besides, he added, he was not served with a notice of entry of judgment under Order 22 Rule 6 of the Civil Procedure Rules as required by law.
The Respondents’ Submissions
20. Despite service, the respondents did not file any documents in response to the appeal.
Analysis and Determination
21. This being a first appeal, this Court’s duty is to analyze and re-assess the evidence on record and reach its own conclusions in the matter, as set out succinctly in Selle v. Associated Motor Boat Co. [1968] EA 123 .
22. I have considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein. I find that the appeal raises the following issues for consideration:
a. Whether the appellant’s application was properly on record.
b. Whether the trial court correctly exercised her discretion in dismissing the appellant’s application for leave to defend and effectively reinstating the ex-parte judgment.
c. What orders should issue?
23. The appellant contended that he had not instructed Odero Osiemo & Co. Advocates or Kago Mburu & Co. Advocates to act on his behalf and had not authorized the 2 nd respondent to appoint counsel for him. The Trial Court nevertheless held that the application was improperly on record for failure to comply with Order 9 rule 9 of the Civil Procedure Rules.
24. To resolve this, I must start by first determining whether the firms of Odero Osiemo and Kago Mburu were properly on record for the appellant. While I agree with the trial court that the appellant bore the onus of proving that he did not instruct the said firms, the letter dated 13 th September 2024 attached to the 1 st respondent’s replying affidavit indicates that the 2 nd respondent instructed counsel on behalf of the appellant. There was nothing in the letter or in the documents adduced to indicate that the 2 nd respondent had authority to do so neither was any authority tabled to affirm that the 2 nd respondent had authority to plead or act on behalf of the appellant. Order 1 Rule 8 equally would not apply, as a party who commences or continues a suit on behalf of another against another must give notice of the same to such person. This is not evidenced in the pleadings before this Court.
25. In addition, the Trial Court held that the application was improperly on record since the appellant’s counsel did not seek leave or file a consent executed by the ‘outgoing’ firm of advocates. Having established that the appellant did not instruct the firms of Odero Osiemo and Kago Mburu, I find that Order 9 Rule 9 does not apply. Even assuming I am wrong, prayer 5 of the appellant’s application expressly sought leave for his advocates to come on record, which, under Order 9 Rule 10, ought to have been determined in the first instance. I accordingly find that the appellant’s application dated 22nd August 2024 was properly before the trial court.
26. I now turn to whether the trial court properly declined to set aside the interlocutory judgment. The starting point is whether the judgment was regular. In Nderitu & Another vs Ghikas & Another (Civil Appeal 6 of 2015) [2016] KECA 470 (KLR), the Court of Appeal distinguished between a regular and an irregular judgment, and the attendant consequences. It stated thus:
“40. … 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).
41. In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo v. Attorney General [1986-1989] EA 456). The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711:
“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
27. I note that the appellant contends that summons was not taken out or served upon him. In his view, the judgment on record was irregular and liable to be set aside debito justitiae . I find merit in that contention. The proceedings of 14 th March 2023 support the appellant’s position, while the affidavit of service indicates that the process server relied on instructions from the 2 nd respondent that service upon the email addresses provided by him was sufficient. There is, however, no evidence that the appellant was served or that the 2 nd respondent had authority to accept service on his behalf.
28. In the circumstances, I find and hold that summons was neither taken out nor served upon the appellant. The centrality of service of summons cannot be overstated. It is the mechanism through which a litigant is first made aware of proceedings against them, and it is therefore inseparable from the right of access to justice under Article 48 and the right to a fair hearing under Article 50(1) of the Constitution. As this Court has already observed in citing Nderitu & Another v Ghikas & Another above, the right to be heard before an adverse decision is taken permeates our entire justice system, and a litigant ought not to be condemned unheard on account of a procedural failure attributable to no fault of their own. This Court cannot, therefore, countenance a finding that would leave the appellant bound by a judgment entered in proceedings of which he was never properly made aware.
29. The position would have been different if the summons was not taken out, but the appellant had nonetheless submitted himself to the jurisdiction of the court. In such a case, his submission to the court’s jurisdiction would not have been a basis to cast away the interlocutory judgment. See Ereri Company Limited vs Simon Kamau Gitau & 7 Others [2012] KEHC 1309 (KLR)
30. Accordingly, the resulting judgment entered was irregular, and the trial court had a judicial duty to set it aside ex debito justitiae , as a matter of right. The fact that the appellant may have had a draft defence raising triable issues does not alter that conclusion. Where a default judgment is irregular, the question whether the intended defence raises triable issues does not arise. The appellant was entitled to have the judgment set aside as a matter of right. See Nderitu & Another vs Ghikas & Another (Supra)
31. The appeal therefore succeeds. The interlocutory judgment and all consequential orders are hereby set aside. The appellant shall have costs of the appeal.
It is so ordered.
Dated, Delivered and Signed at Nairobi this 17 th day of September 2026.