High Court 475 of 2026

Appellant’s submissions 4. It is the Appellant’s Submissions that the trial court breached the rules of natural justice by failing to take into account the Appellant’s right to fair hearing, particularly the right to be heard and defend herself. She submits that she was not served with the summons to enter appearance; that the Affidavit of Service filed in court did not meet the requirements of Order 5 Rule 13 and 15 of Civil Procedure Rules; that where there is no proof of service, a judgment entere,d is irregular, and ought to be set aside, as a matter of right. 5. It is further submitted that the issues in the Petition, namely, the dissolution of the marriage, the custody of children and matrimonial property are pertinent issues, which ought to be ventilated through a full hearing. 6. The Appellant further submits that the trial Kadhi, applied wrong principles of law. She finally urges the court to find that the draft defence raises triable issues. Respondent’s submissions 7. The Respondents submits that the summons and all the accompanying documents were served on the Respondent on 29/2/2024 by a process server as evidenced by the Affidavit of Service sworn on 5/3/2025. It is further stated that other subsequent court documents were served on the Appellant on 16/5/2024 and 24th July, 2024. Analysis and determination 8. This is a first Appeal and this court is under the duty to review the evidence afresh, carry out its own evaluation and arrive at its own findings. Due allowance will be made for the fact that the trial court had the benefit of hearing one or both parties of the parties herein 9. Issues for determination: 1. Whether summons to service of summons to enter appearance were set. 2. Whether the Exparte Judgment should be set aside. Whether the summons were served 10. I have perused the Affidavit of Service sworn on 05/03/2024 by one Kelvin Makau Kingo’ko. He deposes that he proceeded to effect service upon the Appellant after he was shown her residence by the Respondent herein. However, the Affidavit is silent on how the process server identified the Appellant once he reached her house. Further, although the process-server indicated that the Appellant signed the summons, there is no signature on the summons, or on any of the documents served alongside the summons. The other two subsequence services, though they have no bearing on this Application, are also not signed. 11. Nevertheless, there was no evidence of service of the summons. Where summons are not served then the subsequent exparte judgment is irregular, and as correctly pointed out by the Appellant, the Applicant is then entitled to the setting aside, as a matter of right. ( see Waweru v Maina [2025] KECA 50 (KLR) where the court of Appeal cited its earlier decision in James Kanyita Nderitu vs Maries Philotas & Ano (2016) e KLR) 12. I have perused the Ruling of the Hon. Kadhi, and I have noted with a lot of disquiet that the issue of whether summons was served, critical as it was/ is, and despite having been raised by the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/475/eng@2026-01-22 2

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Appellant herein, was never addressed by the trial court. Service of summons is not a minor procedural requirement that one can gloss over. A court’s responsibility to ascertain service of summons goes into the constitutional imperative of a fair trial under Article 50 of the Constitution, and pursuant to Article 25 , is an unlimited right. It therefore behoves the courts to treat the issue of service of summons with seriousness it deserves. 13. In determining the question of setting aside, the court must further consider whether the draft defence, raises triable issues. In this regard the threshold is the presence of at least one issue which warrants a full trial. ( see: Waweru vs Maina – supra)) Again the Hon. Kadhi didn’t address himself to this issue. 14. I have considered the draft response to petition. The Defendant raises issues of cruelty and an attempt to compel her and the children to convert to Islam. These are triable issues that would entitled a defendant to be given a chance to be heard, even if the judgment would have been regular. Whether the trial court applied wrong principles of law. 15. The application to set aside was brought under order 10 Rule 11 of the civil procedure Rules,which is the applicable law. However, the Hon Kadhi, determined the Application as though it was an Application for review under Order 45 of the rules. It is no wonder therefore that he arrived at a finding that there was no new evidence to warrant a review. 16. The Appellant however never sought for review. Although setting aside , an exparte Judgment is tantamount to reviewing the previous order or decree of court, it is not a review within the context of order 45 of the civil procedure Rules. In ignoring the citation of Order 10 Rule 11 by the Appellant and opting to rely on Order 45 the Hon. Kadhi was clearly wrong. It was a misapprehension of the applicable law, when considering an Application of this nature 17. On the prayer for the Appellant’s counsel to come on record, this prayer was not opposed. It ought to have been allowed notwithstanding the dismissal of the other prayers. 18. In conclusion, the Appeal succeeds, and the following orders are hereby issued: a. Hiram Kirimi & company Advocates are hereby granted leave to represent the Appellant in the lower court proceedings b. The Judgment of the trial court in Isiolo Kadhi’s Court Divorce Case No . E 009/2024 is hereby set aside. c. The Appellant to file and serves a Response to the Petition within 14 days from the date of this judgment. d. The lower court case file to be send back to the trial court for the proceedings to go on. e. Each party to meet their own costs in this Appeal. DATED, SIGNED AND DELIVERED AT ISIOLO, THIS 22ND DAY OF JANUARY, 2026. S. CHIRCHIR JUDGE In the Presence of:Roba/Kalelo -Court Assistant. Ms. Nyaga for the Applicant Mr. Jarso for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/475/eng@2026-01-22 3

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