Collins Onyango Ochieng & 1 other v Pauline Wambui Gichuki

Counsel applied to the Court for Request for Judgment in accordance with the Civil Procedure Rules. 7. Default Judgment was entered for the sum of Kenya Shillings Eight Hundred and Thirteen Thousand Seven Hundred and Sixty-Nine (Kshs. 813,769). 8. From the Submissions by the Appellants and the Respondent’s, execution of the decree commenced and it was at this point that the Appellants rushed to court with an Application seeking to set aside the interlocutory judgment. This was done through a Notice of Motion application dated 30 th April 2024 and which was made under cover of a Certificate of Urgency of the same date. 9. The trial Magistrate considered this application and issued orders that status quo be maintained until 25th May 2024. There was an additional filing of a Notice of motion application dated 8th May 2024 which then elicited the Replying Affidavit of Dennis Kathia sworn on 12 th July 2024. 10. In this Replying Affidavit, the Respondent is basically saying that the Appellants were served properly by registered post. 11. Yet the Appellants are saying that the postal address used in the service by registered post service is not theirs. 12. Indeed, the Appellants went even further to file a Supplementary Affidavit sworn by Collins Onyango Ochieng on 22 nd July 2024 where they show extracts of a search on the internet on the postal address that seems to suggest the address belongs to Equity Bank. In addition, they also annex a document that is hard to decipher but which appears to resemble a letter head but they called it a screenshot or contact card. 13. The Magistrate however held that there was no proof they had provided that they were not served. 14. Further, the Magistrate noted that the defence that was the draft defence was also not raising any triable issues. The Magistrate upheld the default Judgment and dismissed the application for the setting aside of the judgment necessitating this present Appeal. 15. The singular issue therefore is whether the ex parte judgment entered by the trial court on 13th December, 2022 was irregular and should be set aside. This is what the Appellants beseech this Court to answer. 16. The Respondents have rightly invited the Court to consider the decision of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) (Judgment) which held as follows:

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“A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others.” 17. These are parameters that Judges sitting in appellate court are mindful of. It is important to understand the whys of decisions of the trial courts and this can only be through the reasons that are advanced by the courts in the decisions whilst not losing sight of the evidence that was placed before the court. The Judge asks whether that reasoning fits that evidence. 18. Taking the invitation from the Respondent, where is the evidence that the postal address that was used belongs to the Appellants? How does one prove that a postal address belongs to someone especially in these times when there are fewer and fewer persons who are beholden to postal addresses? 19. In Koriata & another v Furahia Africa Limited (Environment & Land Case 55 of 2018) [2022] KEELC 14755 (KLR), Justice Mbogo noted that in that case Interestingly, the applicant did not deny or prove that the postal address does not belong to it and neither was it not in use at the time. In this instant case, the Appellants have vehemently denied that the address did belong to them. They have even gone ahead to attach some evidence that the postal address may actually belong to someone else at least according to their internet searches. 20. This leads me to wonder where the postal address came from. Was it the last know postal address that was obtained from a document? How is that address tied to the Appellants? 21. Unfortunately, the Respondent did not come out clearly to demonstrate where she got this postal address. Once there is a denial and there is proof offered that that the postal address does belong to the Appellants, there is doubt that is created and that doubt could have been cleared by a letter, a visiting card, a letterhead or any other proof that the address does indeed belong to the Appellants or at the very worst it used to belong to them and therefore fits the category of the last know postal address. 22. It is necessary to consider carefully the circumstances of service since it is what distinguished a regular default judgment from an irregular default judgment. The Court of Appeal made that difference clear in the case of

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James Kanyita Nderitu vs Marios Philotas Ghikas(supra) (2016) eKLR, where the Court held as follows: “In a regular default judgement, the defendant will have been duly served with summons 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 judgement 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 default judgment, and will take into account such factors as the reason for 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 and whether on the whole it is in the interest of justice to set aside the default judgment, among others.” “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.” 23. The Respondent did not discharge that burden of proving that the postal address was associated and linked to the Appellants and the default judgment falls as being an irregular default judgment. 24. It would be remiss for me not to mention the other aspect of the application where the learned Magistrate having taken a dekko at the defence ruled that it did not raise any triable issues. It is trite that a triable issue is not necessarily one that will succeed, but one which can occasion a trial and determination. 25. Courts should strive not to limit ‘triable issue’ to a point that it is a trifle. When the litigant files the draft defence, it is deprecated that the defence contains

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evidence from which one may glean triable issues. It is the averments in the pleading that serve as an interpretory guide to whether triable issues are raised or not. In so doing the Court should consider whether or not the litigant has contradicted the other party, has made an allegation that goes beyond a mere denial or demurral and has raised substantial issues of fact or law. 26. In Job Kiloch vs Nation Media Group Ltd, Salaba Agencies ltd & Michael Rioro (2015) eklr, the court held: what then is a defence that raises triable issues? A bonafide triable issues is any matter raised by the defendant that would require further interrogation by the court during a full trial…..it therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the court”. 27. The Court will have no option but to declare that, “we have ourselves a trial” in the rephrasing of the words of Sheridan J in Sebei District Administration vs Gasyali & others (1968) EA 300 that ‘a triable issue’ is an issue which raises a prima facie defence and which should go to trial for adjudication 28. The draft Statement of Defence that appears at page 16 of the Record of Appeal denies seriatim the contents of the Plaint but also goes ahead at paragraph 5 to state nine particulars of negligence on the part of the Plaintiff. At paragraph 7, the Plaintiff is also alleged to have exaggerated the repairs and further, an allegation is made that the repairs stated may relate to repairs not attributable to the accident. 29. This is triable and if it is found to be a waste of the judicial time of the court, then appropriate orders would be made so that the Appellants suffer the costs of that wastage. 30. Whilst ordinarily some of the issues that one looks at before setting aside a default judgment include whether there is a defence on merit, what prejudice shall be suffered and whether there is an explanation for the delay, I note that the Respondent has raised the issue of delay as one of the reason why the Appellant should not have the prayer to set aside the Judgment answered. 31. How would one move with haste if they have no information about the judgment? Where the Appellant raises the issue of not having been served, it takes away the doctrine of laches as it means he is unaware and thus cannot enforce his rights any faster. Laches has a starting point which is the moment it is discovered not how long suit has been in court. 32. There are some assumptions of law that are made when it comes to service of summons. If this is your address it is assumed you received it. That

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assumption is not the law by itself. That means that the Court should also consider the possibility that the summons it did not get to the person as this possibility is one that can be the correct one in the grand scheme of justice. 33. These assumptions also mean that the trial Court should also have asked itself why the Appellant was not served personally. If the Auctioneers could find the Appellants easily, why was it necessary in the first place to serve by registered post when it is not the best available path of service. 34. Finally, the Record of Appeal should contain all the documents that have been filed before the trial Court and to the extent that the Appellant did not make efforts to have a proper Record of Appeal, the costs of the appeal shall not be borne by the Respondent but each party shall bear their own costs. Orders 35. This Court allows the Appeal, and sets aside the Ruling of the Hon. Rawlings Liluma Musiega made on 20th September 2024 in its entirety. As a consequence, the said Ruling is substituted with an order of allowing the Appellant’s applications dated 30th April 2024 and 8th May 2024. 36. The default Judgment is set aside and the Appellants are granted leave to Enter Appearance and also file their Defence out of time. Therefater the matter be set down for hearing before another Magistrate other than Hon. Rawlings Liluma Musiega. 37. Each party shall bear the costs of this Appeal. DATED AND DELIVERED ONLINE AT NAIROBI THIS 4TH DAY OF JUNE 2026. BENARD MURUNGA WAFULA JUDGE Delivered on virtual platform in the presence of ........................................... for the Appellant Kavata for the Respondent Kevin Babu - Court Assistant

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