1. This ruling relates to the Notice of Motion dated 24th March 2026 filed by the Respondent/Applicant, Solai Matt Stores Limited. The Applicant seeks leave for the firm of CSA Advocates LLP to come on record after judgment; stay of execution and the setting aside of the warrants of attachment dated 10th February 2026 and proclamation notices dated 18th February 2026 in Milimani CMCC No. 3793 of 2019; stay of further proceedings in that suit; setting aside of the judgment delivered by this court on 7th November 2025 and the trial court judgment delivered on 4th June 2021; and a declaration that the resultant decree is unenforceable.
2. The application is expressed to be brought under Order 22 rules 22, 51 and 52, Order 10 rule 11, Order 9 rule 9, Order 42 rule 6, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law. It is supported by the affidavit of James Mubia Gitundu , a director of the Applicant, sworn on 24th March 2026.
Background
3. The dispute arose from a road traffic accident that occurred on 28th May 2016. The Appellant filed Milimani CMCC No. 3793 of 2019 against the Applicant seeking damages for personal injuries. The Applicant did not enter appearance or file a defence. Interlocutory judgment was entered on 10th December 2019 and, after formal proof, judgment was delivered on 4th June 2021 for Kshs. 953,550 together with costs and interest.
4. The Appellant challenged the assessment of damages in this appeal. The appeal proceeded in the absence of the Applicant and judgment was delivered on 7th November 2025. The trial court judgment was set aside and substituted with an award comprising Kshs. 1,200,000 for pain, suffering and loss of amenities, Kshs. 800,000 for loss of earning capacity, Kshs. 3,550 as special damages and Kshs. 250,000 for future medical expenses.
5. Execution followed in the subordinate court through warrants dated 10th February 2026 and proclamation notices dated 18th February 2026 over motor vehicles KCC 256T, KDR 098A, KCA 523D, KCA 799E and KBK 193D. The Applicant states that the proclamation was its first notice of both the suit and the appeal.
The Applicant’s case
6. The Applicant contends that it was never served with summons to enter appearance, the plaint, the memorandum of appeal and record of appeal, or any hearing and judgment notices. It disputes ownership of the email address liquid.logistics@yahoo.com and denies ever appointing the firm of Kibera & Associates, whose email address was used for some of the alleged service.
7. The Applicant states that its official email address is solaimattstoresltd@gmail.com as shown in its CR12. It maintains that service through other email addresses, without leave of the court and before the 2020 amendments to the Civil Procedure Rules, was ineffective. It therefore argues that the interlocutory judgment, the trial judgment and the appellate judgment are irregular and should be set aside ex debito justitiae.
8. It was further deponed that the Applicant moved the subordinate court through an application dated 19th February 2026 after learning of the execution. According to the Applicant, the lower court may address its own judgment but cannot set aside the judgment of this court, hence the present application.
9. In its submissions, the Applicant relied on Article 50(1) of the Constitution, Order 5 of the Civil Procedure Rules and Gaita vs. Kanyingi; Belgravia Services (K) Limited (Interested Party) [2023] KEELC 16163 (KLR) on the centrality of service of summons. It also cited James Kanyiita Nderitu & another vs. Marios Philotas Ghikas & another [2016] KECA 470 (KLR) on the distinction between a regular and an irregular default judgment.
10. The Applicant submitted that the High Court has appellate and supervisory jurisdiction under Article 165 of the Constitution and that only this court can revisit its judgment. It consequently urged the court to set aside both judgments, stay the lower court proceedings and nullify the warrants and proclamation.
The Appellant’s response
11. The Appellant opposed the application through a replying affidavit sworn on 25th March 2026, grounds of opposition of even date and written submissions. She contends that the application is an abuse of process because the Applicant filed a similar application in the subordinate court and obtained interim stay orders which it failed to disclose.
12. The Appellant further argues that Wiskam Auctioneers was improperly joined after judgment without leave; that the appeal has already been determined and there is no subsisting appeal upon which stay under Order 42 rule 6 can be anchored; and that the Applicant has not established substantial loss, promptness or security.
13. On service, the Appellant states that summons to enter appearance were served upon the Applicant on 14th October 2019 and were received by affixing the Applicant’s stamp. She therefore maintains that the trial judgment was regular and can only be set aside upon sufficient cause.
14. Counsel relied on Muchanga Investments Ltd vs. Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR and Satya Bhama Gandhi vs. Director of Public Prosecutions & 3 others [2018] eKLR on abuse of process. Reliance was also placed on James Kanyiita Nderitu (supra), Utalii Transport Company Limited & 3 others vs. NIC Bank Ltd & another [2014] eKLR and Focin Motorcycle Co. Ltd v Ann Wambui Wangui & another [2018] eKLR .
Issues for determination
15. I have considered the application, the affidavits, the grounds of opposition, the written submissions and the authorities cited. I find that the issues for determination are as follows
a) Whether CSA Advocates LLP should be granted leave to come on record;
b) Whether the application is an abuse of process;
c) Whether a basis has been laid for rehearing the appeal;
d) Whether the trial court judgment may be set aside in these proceedings
e) What consequential orders should issue.
Analysis and determination
16. Order 9 rule 9 of the Civil Procedure Rules requires a change of advocates after judgment to be effected by an order of the court upon application with notice to all parties or by consent between the outgoing and incoming advocates. The application was served and the Appellant has not demonstrated any prejudice that would arise from the proposed change. I therefore grant CSA Advocates LLP leave to come on record for the Applicant.
17. On the alleged abuse of process, it is not disputed that the Applicant first moved the subordinate court through the application dated 19th February 2026. The existence of that application was, however, expressly disclosed at paragraph 25 of the supporting affidavit herein. The complaint of material non-disclosure is therefore not borne out by the record.
18. The two applications arise from the same execution but do not seek relief from courts exercising identical jurisdiction. The subordinate court may determine an application under Order 10 rule 11 CPR concerning its default judgment. It cannot set aside or rehear the judgment delivered by the High Court on appeal. I find that the present application was necessary as it invokes this court’s jurisdiction over the appellate judgment. In those circumstances, I do not find that the mere existence of the lower court application amounts to forum shopping or abuse of process. The courts must, however, avoid issuing inconsistent orders and must confine themselves to their respective jurisdictions.
19. The Applicant cited Order 42 rule 6, which primarily governs stay pending appeal, and did not expressly invoke the provision governing rehearing of an appeal determined ex parte. I find that the omission is not fatal as Order 51 rule 10(2) provides that no application shall be defeated on a technicality or for want of form that does not affect its substance. The substance of the motion is unmistakable: the Applicant seeks to reopen an appeal heard and determined without its participation on the ground that it was not served.
20. The applicable provision is Order 42 rule 23 of the Civil Procedure Rules, which states as follows:
Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the court to which the appeal is preferred to re-hear the appeal; and if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it deems fit.
21. The language of the above rule is mandatory once the respondent establishes either want of due service or sufficient cause for non-attendance. The provision gives effect to the right to a fair hearing under Article 50(1) of the Constitution and to the elementary rule of natural justice that no person should be condemned unheard.
22. The judgment of 7th November 2025 confirms that the appeal proceeded without the participation of the Respondent. The Applicant has specifically denied service of the memorandum and record of appeal and any hearing notice. It has also denied appointing Kibera & Associates or authorising service through that firm’s email address.
23. The Appellant’s replying affidavit addresses service of summons to enter appearance in the original suit. It does not exhibit or identify an affidavit demonstrating due service of the memorandum of appeal, record of appeal, directions, submissions or hearing notice upon the Applicant at its registered office, official email address or authorised advocates. The assertions concerning service at the trial stage do not answer the separate question whether notice of the appeal was duly served.
24. In Joseph M’rukiri vs. Thangicia M’imunya [2021] eKLR , the court applied Order 42 rule 23 and observed that a respondent against whom an appeal has been heard ex parte is entitled to a rehearing upon establishing lack of service or sufficient cause. I am similarly satisfied that the Applicant has established that it did not receive due notice of the appeal. The appellate judgment cannot therefore stand without affording the Applicant an opportunity to be heard.
25. The question of service of the original summons is different. The Appellant has exhibited a copy of the summons bearing what appears to be the Applicant’s receiving stamp dated 14th October 2019. The Applicant disputes that service and asserts that the proceedings were conducted in secrecy. That factual contest may require interrogation of the process server and consideration of the original documents.
26. Order 10 rule 11 vests the court that entered the default judgment with power to set it aside or vary it upon just terms. The Applicant has already invoked that jurisdiction in Milimani CMCC No. 3793 of 2019. It would be inappropriate for this court, through an interlocutory application in the concluded appeal, to prejudge the authenticity or legal effect of the trial-court service documents while the same issue is pending before the subordinate court.
27. The principles in James Kanyiita Nderitu (supra) remain applicable. An irregular default judgment entered without service is set aside as of right; a regular default judgment is set aside in the court’s discretion upon consideration of the explanation, delay, triable defence and prejudice. It is my finding that the category in which the trial judgment falls must first be determined by the trial court on the evidence before it.
28. The prayer that this court should presently set aside the trial judgment dated 4th June 2021 is therefore declined. Nothing in this ruling shall be construed as determining the pending application in the subordinate court, which shall be decided independently on its merits.
29. The objection to the joinder of Wiskam Auctioneers does not defeat the application. An auctioneer acts as an agent in execution of court warrants and no independent cause of action is pleaded against it. Under Order 1 rule 9, proceedings are not defeated by misjoinder or non-joinder. As the warrants and proclamation were issued to the auctioneer, it was a proper recipient of notice of the preservatory orders sought. No substantive order on liability or costs will be made against it.
30. Having found that the appeal must be reheard, it follows that the subject matter of the appeal should be preserved. The Applicant moved the courts promptly after the proclamation on 18th February 2026. Its motor vehicles and business assets face attachment and sale. At the same time, the Appellant holds a trial court judgment which has not been set aside. The interests of both parties will be protected by a conditional stay secured by the amount awarded at the trial stage.
31. The sum awarded by the trial court was Kshs. 953,550 exclusive of interest and costs. It is just that this amount be deposited as security pending the rehearing of the appeal and the determination of the application before the subordinate court. The enhanced appellate award should not be executed while the appeal is awaiting rehearing.
Disposition
32. 32. In the result, the Notice of Motion dated 24th March 2026 is allowed in part on the following terms:
a) Leave is granted to the firm of CSA Advocates LLP to come on record for Solai Matt Stores Limited after judgment. The notice of change of advocates shall be filed and served within seven (7) days.
b) The judgment delivered in Civil Appeal No. E687 of 2021 on 7th November 2025, together with the consequential decree, is hereby set aside under Order 42 rule 23 of the Civil Procedure Rules.
c) Civil Appeal No. E687 of 2021 is reinstated for rehearing inter partes. The Deputy Registrar shall place the appeal before the court for directions on priority basis.
d) Pending the rehearing and determination of the appeal, there shall be a stay of execution of the decree in Milimani CMCC No. 3793 of 2019, including the warrants dated 10th February 2026 and proclamation notices dated 18th February 2026.
e) The stay in order (d) is conditional upon the Respondent/Applicant depositing Kshs. 953,550 in a joint interest-earning account in the names of the advocates for the Appellant and the Respondent or in court within thirty (30) days from the date of this ruling. In default, the stay shall lapse automatically, but the order reinstating the appeal shall remain in force.
f) The parties’ advocates shall execute the documents necessary to open the joint account within fourteen (14) days. In the event of non-cooperation by either party, the Applicant shall deposit the security in court within the thirty-day period.
g) The prayer to set aside the trial court judgment dated 4th June 2021 is declined. That issue shall be determined by the subordinate court in the application already pending before it, without being influenced by any observation made herein.
h) No substantive order is made against Wiskam Auctioneers, save that it shall comply with the stay of execution in order (d).
i) Considering that the appeal proceeded without due notice to the Applicant, each party shall bear its own costs of this application.
2. The application is expressed to be brought under Order 22 rules 22, 51 and 52, Order 10 rule 11, Order 9 rule 9, Order 42 rule 6, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law. It is supported by the affidavit of James Mubia Gitundu , a director of the Applicant, sworn on 24th March 2026.
Background
3. The dispute arose from a road traffic accident that occurred on 28th May 2016. The Appellant filed Milimani CMCC No. 3793 of 2019 against the Applicant seeking damages for personal injuries. The Applicant did not enter appearance or file a defence. Interlocutory judgment was entered on 10th December 2019 and, after formal proof, judgment was delivered on 4th June 2021 for Kshs. 953,550 together with costs and interest.
4. The Appellant challenged the assessment of damages in this appeal. The appeal proceeded in the absence of the Applicant and judgment was delivered on 7th November 2025. The trial court judgment was set aside and substituted with an award comprising Kshs. 1,200,000 for pain, suffering and loss of amenities, Kshs. 800,000 for loss of earning capacity, Kshs. 3,550 as special damages and Kshs. 250,000 for future medical expenses.
5. Execution followed in the subordinate court through warrants dated 10th February 2026 and proclamation notices dated 18th February 2026 over motor vehicles KCC 256T, KDR 098A, KCA 523D, KCA 799E and KBK 193D. The Applicant states that the proclamation was its first notice of both the suit and the appeal.
The Applicant’s case
6. The Applicant contends that it was never served with summons to enter appearance, the plaint, the memorandum of appeal and record of appeal, or any hearing and judgment notices. It disputes ownership of the email address liquid.logistics@yahoo.com and denies ever appointing the firm of Kibera & Associates, whose email address was used for some of the alleged service.
7. The Applicant states that its official email address is solaimattstoresltd@gmail.com as shown in its CR12. It maintains that service through other email addresses, without leave of the court and before the 2020 amendments to the Civil Procedure Rules, was ineffective. It therefore argues that the interlocutory judgment, the trial judgment and the appellate judgment are irregular and should be set aside ex debito justitiae.
8. It was further deponed that the Applicant moved the subordinate court through an application dated 19th February 2026 after learning of the execution. According to the Applicant, the lower court may address its own judgment but cannot set aside the judgment of this court, hence the present application.
9. In its submissions, the Applicant relied on Article 50(1) of the Constitution, Order 5 of the Civil Procedure Rules and Gaita vs. Kanyingi; Belgravia Services (K) Limited (Interested Party) [2023] KEELC 16163 (KLR) on the centrality of service of summons. It also cited James Kanyiita Nderitu & another vs. Marios Philotas Ghikas & another [2016] KECA 470 (KLR) on the distinction between a regular and an irregular default judgment.
10. The Applicant submitted that the High Court has appellate and supervisory jurisdiction under Article 165 of the Constitution and that only this court can revisit its judgment. It consequently urged the court to set aside both judgments, stay the lower court proceedings and nullify the warrants and proclamation.
The Appellant’s response
11. The Appellant opposed the application through a replying affidavit sworn on 25th March 2026, grounds of opposition of even date and written submissions. She contends that the application is an abuse of process because the Applicant filed a similar application in the subordinate court and obtained interim stay orders which it failed to disclose.
12. The Appellant further argues that Wiskam Auctioneers was improperly joined after judgment without leave; that the appeal has already been determined and there is no subsisting appeal upon which stay under Order 42 rule 6 can be anchored; and that the Applicant has not established substantial loss, promptness or security.
13. On service, the Appellant states that summons to enter appearance were served upon the Applicant on 14th October 2019 and were received by affixing the Applicant’s stamp. She therefore maintains that the trial judgment was regular and can only be set aside upon sufficient cause.
14. Counsel relied on Muchanga Investments Ltd vs. Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR and Satya Bhama Gandhi vs. Director of Public Prosecutions & 3 others [2018] eKLR on abuse of process. Reliance was also placed on James Kanyiita Nderitu (supra), Utalii Transport Company Limited & 3 others vs. NIC Bank Ltd & another [2014] eKLR and Focin Motorcycle Co. Ltd v Ann Wambui Wangui & another [2018] eKLR .
Issues for determination
15. I have considered the application, the affidavits, the grounds of opposition, the written submissions and the authorities cited. I find that the issues for determination are as follows
a) Whether CSA Advocates LLP should be granted leave to come on record;
b) Whether the application is an abuse of process;
c) Whether a basis has been laid for rehearing the appeal;
d) Whether the trial court judgment may be set aside in these proceedings
e) What consequential orders should issue.
Analysis and determination
16. Order 9 rule 9 of the Civil Procedure Rules requires a change of advocates after judgment to be effected by an order of the court upon application with notice to all parties or by consent between the outgoing and incoming advocates. The application was served and the Appellant has not demonstrated any prejudice that would arise from the proposed change. I therefore grant CSA Advocates LLP leave to come on record for the Applicant.
17. On the alleged abuse of process, it is not disputed that the Applicant first moved the subordinate court through the application dated 19th February 2026. The existence of that application was, however, expressly disclosed at paragraph 25 of the supporting affidavit herein. The complaint of material non-disclosure is therefore not borne out by the record.
18. The two applications arise from the same execution but do not seek relief from courts exercising identical jurisdiction. The subordinate court may determine an application under Order 10 rule 11 CPR concerning its default judgment. It cannot set aside or rehear the judgment delivered by the High Court on appeal. I find that the present application was necessary as it invokes this court’s jurisdiction over the appellate judgment. In those circumstances, I do not find that the mere existence of the lower court application amounts to forum shopping or abuse of process. The courts must, however, avoid issuing inconsistent orders and must confine themselves to their respective jurisdictions.
19. The Applicant cited Order 42 rule 6, which primarily governs stay pending appeal, and did not expressly invoke the provision governing rehearing of an appeal determined ex parte. I find that the omission is not fatal as Order 51 rule 10(2) provides that no application shall be defeated on a technicality or for want of form that does not affect its substance. The substance of the motion is unmistakable: the Applicant seeks to reopen an appeal heard and determined without its participation on the ground that it was not served.
20. The applicable provision is Order 42 rule 23 of the Civil Procedure Rules, which states as follows:
Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the court to which the appeal is preferred to re-hear the appeal; and if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it deems fit.
21. The language of the above rule is mandatory once the respondent establishes either want of due service or sufficient cause for non-attendance. The provision gives effect to the right to a fair hearing under Article 50(1) of the Constitution and to the elementary rule of natural justice that no person should be condemned unheard.
22. The judgment of 7th November 2025 confirms that the appeal proceeded without the participation of the Respondent. The Applicant has specifically denied service of the memorandum and record of appeal and any hearing notice. It has also denied appointing Kibera & Associates or authorising service through that firm’s email address.
23. The Appellant’s replying affidavit addresses service of summons to enter appearance in the original suit. It does not exhibit or identify an affidavit demonstrating due service of the memorandum of appeal, record of appeal, directions, submissions or hearing notice upon the Applicant at its registered office, official email address or authorised advocates. The assertions concerning service at the trial stage do not answer the separate question whether notice of the appeal was duly served.
24. In Joseph M’rukiri vs. Thangicia M’imunya [2021] eKLR , the court applied Order 42 rule 23 and observed that a respondent against whom an appeal has been heard ex parte is entitled to a rehearing upon establishing lack of service or sufficient cause. I am similarly satisfied that the Applicant has established that it did not receive due notice of the appeal. The appellate judgment cannot therefore stand without affording the Applicant an opportunity to be heard.
25. The question of service of the original summons is different. The Appellant has exhibited a copy of the summons bearing what appears to be the Applicant’s receiving stamp dated 14th October 2019. The Applicant disputes that service and asserts that the proceedings were conducted in secrecy. That factual contest may require interrogation of the process server and consideration of the original documents.
26. Order 10 rule 11 vests the court that entered the default judgment with power to set it aside or vary it upon just terms. The Applicant has already invoked that jurisdiction in Milimani CMCC No. 3793 of 2019. It would be inappropriate for this court, through an interlocutory application in the concluded appeal, to prejudge the authenticity or legal effect of the trial-court service documents while the same issue is pending before the subordinate court.
27. The principles in James Kanyiita Nderitu (supra) remain applicable. An irregular default judgment entered without service is set aside as of right; a regular default judgment is set aside in the court’s discretion upon consideration of the explanation, delay, triable defence and prejudice. It is my finding that the category in which the trial judgment falls must first be determined by the trial court on the evidence before it.
28. The prayer that this court should presently set aside the trial judgment dated 4th June 2021 is therefore declined. Nothing in this ruling shall be construed as determining the pending application in the subordinate court, which shall be decided independently on its merits.
29. The objection to the joinder of Wiskam Auctioneers does not defeat the application. An auctioneer acts as an agent in execution of court warrants and no independent cause of action is pleaded against it. Under Order 1 rule 9, proceedings are not defeated by misjoinder or non-joinder. As the warrants and proclamation were issued to the auctioneer, it was a proper recipient of notice of the preservatory orders sought. No substantive order on liability or costs will be made against it.
30. Having found that the appeal must be reheard, it follows that the subject matter of the appeal should be preserved. The Applicant moved the courts promptly after the proclamation on 18th February 2026. Its motor vehicles and business assets face attachment and sale. At the same time, the Appellant holds a trial court judgment which has not been set aside. The interests of both parties will be protected by a conditional stay secured by the amount awarded at the trial stage.
31. The sum awarded by the trial court was Kshs. 953,550 exclusive of interest and costs. It is just that this amount be deposited as security pending the rehearing of the appeal and the determination of the application before the subordinate court. The enhanced appellate award should not be executed while the appeal is awaiting rehearing.
Disposition
32. 32. In the result, the Notice of Motion dated 24th March 2026 is allowed in part on the following terms:
a) Leave is granted to the firm of CSA Advocates LLP to come on record for Solai Matt Stores Limited after judgment. The notice of change of advocates shall be filed and served within seven (7) days.
b) The judgment delivered in Civil Appeal No. E687 of 2021 on 7th November 2025, together with the consequential decree, is hereby set aside under Order 42 rule 23 of the Civil Procedure Rules.
c) Civil Appeal No. E687 of 2021 is reinstated for rehearing inter partes. The Deputy Registrar shall place the appeal before the court for directions on priority basis.
d) Pending the rehearing and determination of the appeal, there shall be a stay of execution of the decree in Milimani CMCC No. 3793 of 2019, including the warrants dated 10th February 2026 and proclamation notices dated 18th February 2026.
e) The stay in order (d) is conditional upon the Respondent/Applicant depositing Kshs. 953,550 in a joint interest-earning account in the names of the advocates for the Appellant and the Respondent or in court within thirty (30) days from the date of this ruling. In default, the stay shall lapse automatically, but the order reinstating the appeal shall remain in force.
f) The parties’ advocates shall execute the documents necessary to open the joint account within fourteen (14) days. In the event of non-cooperation by either party, the Applicant shall deposit the security in court within the thirty-day period.
g) The prayer to set aside the trial court judgment dated 4th June 2021 is declined. That issue shall be determined by the subordinate court in the application already pending before it, without being influenced by any observation made herein.
h) No substantive order is made against Wiskam Auctioneers, save that it shall comply with the stay of execution in order (d).
i) Considering that the appeal proceeded without due notice to the Applicant, each party shall bear its own costs of this application.