Njenga & another v Hamud (Civil Appeal 145 of 2020) [2026] KECA 1539 (KLR)
The bottom line
#Once service is proven in Kenya, a default judgment stands unless you show a genuine reason for the delay and a real defence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned trial Judge exercised her discretion judiciously in declining to set aside the interlocutory judgment entered on 31st March 2016 by the Deputy Registrar
- 2.Whether the appellants were duly served with the pleadings
- 3.Whether the interlocutory judgment was regular
- 4.Whether the trial court erred in not setting aside the said judgment
Key legal issues
#Whether the appellants were duly served with the pleadings
The appellants were duly served with the plaint, summons and amended plaint but took no action; their claim of ignorance of the suit was false and a real abuse of the court process.
The process server Willis Odhiambo Agayi swore an uncontroverted affidavit of service dated 7 August 2015 proving service of the plaint on the 1st appellant on 8 June 2015, and the amended plaint was received on 3 December 2015 on behalf of both appellants. No appearance was entered within the 15 days allowed. Subsequent events - objection proceedings by the 1st appellant's wife to the attached goods, the decree used in execution, and the 1st appellant's committal to civil jail - demonstrated knowledge of the suit, rendering the claim of ignorance an abuse of process.
Whether the interlocutory judgment was regular
The interlocutory judgment of 31 March 2016 for the liquidated sum was regular; the argument built on the withdrawn general damages claim was a non-starter.
Judgment was entered over nine months after service on 8 June 2015, during which no appearance was entered although appearance was due within 15 days. The ensuing attachment was procedurally conducted. Because the respondent had withdrawn the claim for general damages and pursued only the liquidated special damages, the appellants' contention that the unliquidated residue should have been set down for formal hearing under Order 10 Rule 9 of the Civil Procedure Rules could not render the judgment irregular or require fresh service of the plaint.
Whether the trial Judge erred in declining to set aside the interlocutory judgment, that is, whether she exercised her discretion under Order 10 Rule 11 of the Civil Procedure Rules judiciously
The discretion was judiciously exercised: the Judge considered the correct factors and correctly found no triable issue, and the Court of Appeal found no reason to interfere.
Applying the settled two-limb test, an applicant must show both a reason for the default and a reasonable defence raising triable issues. Here the default was inexcusable given proven service, and the draft defence merely alleged overpayment without substantiation. The 1st appellant's affidavit sworn on 1 August 2018 acknowledged the debt in paragraphs 13, 14, 22 and 24; the invoice relied on was dated 12 October 2017, after judgment; and upon arrest the 1st appellant admitted owing the claim. The defence amounted to buying time to deny the respondent the fruits of his judgment.
Legal principles established
#- On a first appeal, the Court of Appeal must reappraise the evidence and come to its own independent conclusion as though hearing the matter for the first time.
- An applicant seeking to set aside an ex parte judgment must satisfy a two-limb test: a reason for the default and a reasonable defence raising triable issues.
- A litigant duly served with pleadings who thereafter participates in execution, objection and committal proceedings cannot later claim ignorance of the suit; the resulting default judgment is regular.
- The improper exercise of judicial discretion is a matter of law and is therefore reviewable on appeal.
Court orders
#- 1.The appeal is dismissed with costs to the respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi HCCC No. 262 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court. The judgment cites no specific jurisdictional provision, describing its task as a first appeal: 'This being a first appeal this court has a duty to reappraise the evidence and come to an independent conclusion as if it is the court hearing the matter for the first time.'
Relief refused
#Setting aside of the interlocutory judgment entered on 31st March 2016
The appellants were duly served with the pleadings and took no action; the judgment was regular and the claim of ignorance of the suit was an abuse of process.
Leave to file a defence out of time
The draft defence raised no triable issues; the claim of overpayment was unsubstantiated while the 1st appellant's own affidavit acknowledged the indebtedness.
Stay of execution of the decree
The court found the judgment regular, service proven, and the attachment procedurally conducted, so there was no basis to disturb the execution process.
Costs
The appeal was dismissed with costs to the respondent: 'The appeal lacks merit and is hereby dismissed with costs to the respondent.' (The appellants' Notice of Motion in the High Court had likewise been dismissed with costs.)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
After analysing all the evidence on record, and what transpired in this case, we do not find any reason to interfere with the findings by the learned trial Judge. The appeal lacks merit and is hereby dismissed with costs to the respondent.
Our finding is that the appellants were duly served with the pleadings and necessary documents but took no action. Thus the judgment was regular.
For the appellants to claim that they were not aware of the suit before the court is a real abuse of the court process.
From all the admitted facts it is clear that the appellants are not raising any triable issues but are just buying time to deny the respondent his right to enjoy the fruits of his judgment.
This being a first appeal this court has a duty to reappraise the evidence and come to an independent conclusion as if it is the court hearing the matter for the first time.
The issue of general damages raised by the appellants is a non-starter. The reason being that the respondent withdrew the said claim and only pursued the claim for special damages.
Issues in the judgment
#The Notice of Motion is dated 29th June 2018 in the narrative but referred to as dated 26th June 2018 in the passage describing its dismissal - an internal date discrepancy.
The rule number for the Order 22 provision on notice of entry of judgment is omitted from the text, which reads 'Order 22 Rule Civil Procedure Rules'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njenga & another v Hamud (Civil Appeal 145 of 2020) [2026] KECA 1539 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal dated 27th February, 2020, from Nairobi HCCC No. 262 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1539/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.