Wilberforce Nyagga & 8 others v Kash Mobile Limited

Appellants’ Case 2. Aggrieved by the said ruling, the Appellants lodged a Memorandum of Appeal dated 25th October 2024 seeking to set aside the impugned ruling on the following grounds: 1. That the Honourable Adjudicator erred in law in failing to find that the respondent’s evidence of service of the claim was insufficient and fell below the legal threshold stipulated under Rule 36 of the Small Claims Court Rules, 2019. 2. That the Honourable Adjudicator erred and misapplied the law on the principles for setting aside exparte judgment to the extent that she failed to address herself as to whether the respondents had demonstrated a triable defence. 3. That the Honourable Adjudicator erred in law in disregarding the evidence by the appellants that they had demonstrated a triable defence on account of the money they had already repaid yet the same was still included in the decree and the respondent was pursuing for its payment. 4. That the Honourable Adjudicator erred in law by ignoring to address the issue of the legal status of the respondent and its capacity to sue despite the applicants’ grievances that the respondent was not registered and its physical offices were unknown. 5. That the Honourable Adjudicator wrongly exercised her discretion. 3. The Appellants urged their case further through written submissions dated 2nd March 2026. The main issue raised by the appellants is the issue of service of the claim upon them. The appellants maintain that they never received the statement of claim, allegedly served through their employer who was the 1st respondent in the lower court matter. 4. The appellants take issue with the trial court’s finding that they were properly served on the basis that the process server’s certificate of service dated 16th February 2023 which did not give details of how each one of them was served. The appellants contended that the trial court’s finding that there was proper service was erroneous as the said service did not meet the requirements of Rule 36 of the Small Claims Court Rules. 5. The appellants further submitted that the law places the burden of proof upon the respondent to prove service upon the appellants, which burden the respondent never discharged. It was further submitted on behalf of the appellants that the trial court failed to examine their evidence of a defence that raised triable issues. 6. In conclusion, the Appellants argued that since there was no evidence of service of court process upon each one of them, then the trial Court ought to have instead allowed the application. To that end, they sought that the appeal be allowed with costs. Respondent’s Case: 7. The respondent opposed the appeal through written submissions dated 20th March 2026. It is the respondent’s case that the appellants were properly served with the pleadings and were therefore aware of the suit. To that end, the respondent submitted that it had complied with the provisions of Rules 35 and 36 of the Small Claims Court Rules 2019 and filed its affidavit of service before the trial court. 8. The Respondent further submitted that the Appellants’ office received a physical copy of the claim on 15th February 2023 at 12:30 pm and appended its stamp on the documents served. The respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8094/eng@2026-06-04 2

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further argued that upon service of the claim upon the appellants’ place of work, some of their colleagues settled their debts and their names were subsequently removed from the proceedings. 9. Based on the foregoing submissions, the Respondent prayed that the appeal be dismissed with costs. Analysis and Determination 10. The sole issue for determination in this appeal is whether the trial Court correctly disallowed the application after finding that there had been proper service upon the appellants. The jurisdiction of this Court on an appeal from the Small Claims Court is spelt out in Section 38(1) of the Small Claims Court Act to be only on matters of law and that such an appeal is final. Since the appeal herein seeks to interrogate the manner in which the Court exercised its discretion in rejecting the application, the issue comprises of a matter of law and as such this Court has the requisite jurisdiction over this appeal. 11. This being a first appeal, this court has a duty to re-evaluate and consider afresh the evidence tendered before the trial court and come to its own independent conclusion (See Selle & Anor vs. Associated Motor Boat Co Ltd & Others [1968] EA 123). 12. The disputed service was done physically and therefore falls within the ambit of Rule 35(1) of the Small Claims Court Rules which provides as follows: “ 35. Mode of service (1) Service of any document under these Rules shall be made by delivering a copy thereof personally to the party upon whom it is to be served and, where there are more than one party to be served, on each of them.” 13. My understanding of the above provision is that where there are more than one person to be served, service shall be done by delivering a copy of the process personally to each of them. Rule 35(2) allows physical service through recognized agents authorised to receive the documents on behalf of the person being served. 14. In our case, the affidavit of service filed by the respondent and dated 16th February 2023 states that the Advocate for the respondent served the documents upon the offices of Kenya Medical Research Institute at the headquarters and via WhatsApp and email on 15th February 2023 an 16th February 2023. The said affidavit does not disclose whether the 1st respondent in the suit was an authorised agent for the other respondents (read: the appellants). Further, the said affidavit does not disclose the WhatsApp numbers and or email addresses allegedly used to effect service upon the appellants. 15. Flowing from the foregoing, I do hereby find and hold that the trial court erred in its finding that the appellants had been properly served yet there was no compliance with the elaborate requirements of Rules 35 and 36 of the Small Claims Court Rules. 16. Having found that there was no proof of service upon the appellants, I need not consider whether the appellants had a good defence to the claim, one that raised triable issues. Once the court finds that there was no service, then the applicants would be entitled to an order setting aside the exparte judgment unconditionally. Disposition: 17. In the end, the following final orders hereby issue: a. The appeal is hereby allowed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8094/eng@2026-06-04 3

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b. The ruling of the Small Claims Court as delivered on the 4th October 2024 is hereby set aside and substituted with an order unconditionally allowing the Appellants’ Notice of Motion application dated 4th June 2024. c. That the appellants shall file and serve their responses to the claim in the lower court within fourteen (14) days from the date of this ruling and the matter shall be heard on merit before any Judicial Officer other than Hon C. A. Okumu. d. The Appellants are hereby awarded the costs of this appeal assessed at Kshs. 20,000/= (Kenya Shillings Twenty Thousand Only). DAVID MBURU JUDGE 04/06/2026 Judgment delivered virtually via Microsoft Teams and uploaded to the Case Tracking System (CTS) this 4th day of June 2026. In the presence of: …………………………………………………….Court Assistant …………………………………………………...for the Appellant …………………………………………………for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8094/eng@2026-06-04 4

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