John Suing as the legal representative and administrator of the Estate of the Late Muema John v Juma & another

4. The application is opposed by the Plainti through the Replying Adavit sworn by Babra Ayieko Mukongolo, Advocate, and led on 27th July 2026. Background 5. The Plainti, Mwende John, brings this suit as the legal representative and Administrator of the Estate of the late Muema John. The suit was instituted against the 1st Defendant, Kenya Power & Lighting Company, and the 2nd Defendant, John Kitonga Juma, and was subsequently amended by an Amended Plaint dated 12th July 2023. 6. According to the Plainti, the Applicant failed to enter appearance and/or le a defence after service, whereupon interlocutory judgment was entered against him on 4th April 2024. The matter thereafter proceeded to hearing. The Plainti and the 1st Defendant closed their respective cases and the Plainti led and served closing submissions, with the suit being stated to be ripe for judgment. 7. The Applicant takes a dierent position. He states that he never knew of the existence of this civil suit until 13th May 2026, when he received communication which led him to make inquiries at the Mombasa Law Courts registry. His contention is that he had throughout been involved in Criminal Case No. E1032 of 2022, arising from the same occurrence, and that he understood his dealings with the Plainti and her advocates in that context. 8. He further disputes the Adavit of Service sworn by George Odhiambo Odero, which states that court documents were electronically served upon him through WhatsApp on 18th July 2023. He maintains that no such documents were served upon his registered WhatsApp number. The Plainti ’s Response 9. The Plainti disputes the Applicant’s assertion that he rst became aware of the proceedings in May 2026. The Plainti relies, rstly, on an Adavit of Service dated 18th July 2023, sworn by George Odhiambo Odero, stating that the Applicant was served electronically through WhatsApp. 10. Secondly, the Plainti states that there exists a further Adavit of Service dated 7th August 2023, similarly conrming electronic service through the same WhatsApp number. 11. Of particular signicance, however, the Plainti concedes that the WhatsApp number through which the documents were transmitted was not the Applicant’s personal telephone number. The Plainti states that the number belonged to Advocate Amos Murigu, who at the material time represented the Applicant in Criminal Case No. E1032 of 2022. 12. The Plainti states that Advocate Murigu regularly communicated with the Applicant through that number concerning the criminal proceedings and that, upon receipt of the documents in July 2023, he handed over and/or relayed the documents to the Applicant and explained their contents to him. 13. Thirdly, the Plainti states that on 14th September 2023, while the Applicant was physically present at Mombasa Law Courts, Court No. 1, in relation to the criminal proceedings, counsel watching brief for the Plainti personally served him with the pleadings in this civil suit. 14. The Plainti nevertheless candidly acknowledges that no Adavit of Service was sworn in respect of that alleged physical service, explaining that this was an inadvertent oversight. 15. On those premises, the Plainti contends that the Applicant has always been aware of this suit, has approached the Court with unclean hands, and has deliberately attempted to portray himself as unaware of proceedings which he in fact knew about. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/835/eng@2026-08-27 2

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Oral arguments 16. When the matter came before the Court, the Applicant appeared in person. Ms Mukongolo appeared for the Plainti while Ms Njagi appeared for the 1st Defendant. 17. The 1st Defendant indicated that it would not participate substantively in the application. 18. The Applicant reiterated that he had never been served. He maintained that although he knew of the criminal proceedings arising from the accident, he did not know about this civil suit. He distinguished his participation in the criminal case from notice of the separate civil proceedings. 19. The Applicant also challenged the Plainti’s reliance on Advocate Murigu. He maintained that service upon or communication with an advocate involved in the criminal case did not amount to service upon him in this civil suit. He further denied the alleged personal service said to have taken place on 14th September 2023. 20. Counsel for the Plainti relied on the Replying Adavit and maintained that the Applicant had been aware of the suit and that reopening a matter which had proceeded through hearing and was ripe for judgment would occasion substantial prejudice to the Plainti. Issues For Determination 21. Having considered the application, the Supporting Adavit, the Replying Adavit, the documents annexed thereto, the oral representations made before Court and the record, the following issues arise for determination: a. Whether the Applicant was properly served with summons and the pleadings in this suit; b. Whether the interlocutory judgment entered on 4th April 2024 was regularly entered; c. Whether the Court should set aside the interlocutory judgment and the consequential proceedings against the Applicant; and d. What consequential orders ought to issue. Whether there was proper service 22. Service of summons is not a mere procedural nicety. It is the mechanism through which a defendant is brought within the adjudicative process and is aorded an opportunity to answer the claim made against him. 23. Order 5 Rule 8(1) of the Civil Procedure Rules requires, wherever practicable, that service be eected upon the defendant personally unless he has an agent empowered to accept service. The Rules also recognise service upon an advocate where that advocate has instructions to accept service on behalf of the defendant. 24. The Civil Procedure Rules further permit electronic service. Under Order 5 Rule 22C, summons may be sent through a mobile-enabled messaging application to the defendant’s last known and used telephone number, with service being proved by the requisite delivery receipt and adavit of service. 25. There is therefore no question that service through WhatsApp is legally permissible. The question in this matter is whether the WhatsApp service relied upon by the Plainti was service upon this Applicant in accordance with the Rules. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/835/eng@2026-08-27 3

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26. The Adavit of Service sworn by George Odhiambo Odero states that on 18th July 2023 he electronically served the 2nd Defendant through WhatsApp Messenger. 27. The diculty confronting the Plainti is revealed in her own Replying Adavit. She expressly states that the number used was not the Applicant’s personal number, but the registered number of Advocate Amos Murigu. This admission is material. 28. Order 5 Rule 22C refers to the defendant’s last known and used telephone number. The Rules do not provide that service upon any telephone number associated with a person who happens to represent the defendant in separate proceedings automatically constitutes service upon the defendant. 29. Further, where an advocate is relied upon as the person receiving summons on behalf of a defendant, it must be demonstrated that the advocate had instructions or authority to accept service in the suit in question. Kenyan courts have consistently treated such authority as necessary under Order 5 Rule 8(2). 30. In the present matter, there is no evidence before Court that Advocate Amos Murigu was instructed to act for the Applicant in this civil suit, or that he was empowered to accept service of summons in this suit. 31. The evidence is instead that Mr Murigu represented the Applicant in Criminal Case No. E1032 of 2022. Representation in criminal proceedings does not, without more, confer authority upon an advocate to receive originating court process on behalf of the same person in separate civil proceedings. 32. The Plainti further states that Advocate Murigu subsequently passed the documents to the Applicant and explained their contents. That assertion is attributed to information allegedly supplied by Advocate Murigu. 33. Advocate Murigu has not sworn an adavit before this Court conrming that he received the civil pleadings, transmitted them to the Applicant, explained their contents to him, or had authority to receive service on his behalf. The Applicant, on the other hand, expressly denies receiving the documents. 34. In those circumstances, the Court cannot convert the transmission of documents to an advocate's telephone number in separate criminal proceedings into formal service upon the Applicant in the present civil proceedings merely on the basis that the advocate allegedly later conveyed the documents to him. 35. The alleged second electronic service dated 7th August 2023 suers from the same diculty. The Plainti herself states that it was eected through the same WhatsApp number. 36. If that number belonged to Advocate Murigu and not to the Applicant, repetition of service through the same number does not cure the underlying defect unless the advocate had authority to accept service in this suit. No such authority has been demonstrated. Alleged physical service of 14th September 2023. The Plainti additionally relies on alleged physical service on 14th September 2023. 37. According to the Plainti, the Applicant attended Court No. 1 at Mombasa Law Courts in relation to Criminal Case No. E1032 of 2022 and was personally handed copies of the pleadings in the civil case by counsel then watching brief. The Applicant expressly denies that this occurred. Signicantly, the Plainti concedes that no Adavit of Service was sworn by the person said to have eected that physical service. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/835/eng@2026-08-27 4

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38. The alleged server has therefore not placed sworn evidence before this Court describing when, where and how the Applicant was identied and served, the documents handed to him, or his reaction upon service. 39. Where service is disputed and the consequence of accepting such service is that a litigant loses his right to defend a suit and judgment is entered against him, the Court must be satised by cogent evidence that service actually occurred. 40. In the circumstances before me, the unveried assertion of physical service, particularly when expressly denied by the Applicant and unsupported by an Adavit of Service from the person said to have eected it, is insucient to establish proper service. Applicant’s knowledge of the criminal proceedings 41. The Plainti also places considerable reliance upon the Applicant's participation in Criminal Case No. E1032 of 2022. It is common ground that the Applicant was aware of and participated in those criminal proceedings. The Plainti argues that the criminal and civil proceedings arise from the same occurrence, involve substantially the same persons and involved some of the same advocates. 42. That circumstance may be relevant to the factual question of whether the Applicant might have become aware that civil proceedings were contemplated or pending. It does not, however, dispense with the requirement for proper service of summons to enter appearance in the civil suit. 43. Actual or suspected knowledge of litigation is not, without more, a substitute for service where the Rules require service as the foundation upon which default judgment is to be entered. 44. A party attending criminal proceedings cannot simply be deemed to have entered or been served in separate civil proceedings merely because both matters arise from the same occurrence. Regular or irregular judgment 45. The distinction between a regular and an irregular default judgment is well settled. In James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] KECA 470 (KLR), the Court of Appeal explained that a regular default judgment is one entered after a defendant has been duly served but fails to enter appearance or le a defence. Where judgment is entered without proper service, it is irregular and the defendant is entitled to have it set aside as of right. 46. The consequence is important. Where judgment is regular, the Court exercises a judicial discretion under Order 10 Rule 11 and may consider matters such as the explanation for default, delay, prejudice and whether there is a defence raising triable issues. 47. Where judgment is irregular for want of service, the Court does not validate it merely because the Plainti has proceeded further with the litigation. The foundation upon which the judgment was entered was defective. 48. In the present case, the Plainti has not satised the Court that the Applicant was personally served, electronically served through his last known and used telephone number, or served through an advocate authorised to accept service in this civil suit. I consequently nd that the interlocutory judgment entered against the Applicant on 4th April 2024 was irregularly entered. 49. Once that conclusion is reached, the advanced stage of the proceedings cannot cure the irregularity. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/835/eng@2026-08-27 5

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Delay and prejudice 50. I have nevertheless considered the Plainti’s argument that the application has been brought very late, after the Plainti and the 1st Defendant had closed their cases and closing submissions had been led.I also acknowledge the prejudice occasioned to a litigant whose case has progressed through hearing only to face reopening of the proceedings. 51. However, that prejudice must be weighed against the more fundamental prejudice of permitting a judgment against a party who was not properly served and who was consequently denied participation in the proceedings. 52. The Applicant states that he discovered the suit on 13th May 2026. His application was dated 17th July 2026 and led shortly thereafter. Whatever criticism may be made of the period between May and July 2026, delay cannot regularise a judgment founded upon defective service. The Court's duty is to administer substantive justice while preserving fairness to all parties. 53. The principles in Shah v Mbogo remain relevant to the general exercise of discretion: the power to set aside exists to prevent injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a litigant deliberately seeking to obstruct or delay justice. 54. I am not persuaded, on the evidence presently before me, that the Applicant deliberately evaded service or consciously elected not to defend this civil suit. Indeed, the Plainti’s own evidence that the WhatsApp number used belonged to another person substantially supports the Applicant’s complaint that service was not eected upon his personal number. Right to a fair hearing 55. The Applicant invoked Article 50(2)(e) of the Constitution. Strictly speaking, Article 50(2) addresses rights of an accused person in criminal proceedings, while the applicable constitutional guarantee in this civil dispute is Article 50(1), which secures the right of every person to have a dispute determined in a fair hearing. The erroneous citation does not defeat the substance of the application. 56. The right to a fair hearing encompasses an eective opportunity to know the case one is required to answer and to present one's response before an adverse determination is made. 57. The Court must at the same time have regard to sections 1A and 1B of the Civil Procedure Act and ensure the just, expeditious and proportionate resolution of proceedings. Those objectives can be accommodated here without setting the entire suit at nought. Whether the entire hearing should be nullied 58. The Plainti and the 1St Defendant have already participated in the hearing and closed their respective cases. The defect identied by this Court concerns the Applicant's exclusion from proceedings as a consequence of defective service and the interlocutory judgment entered against him. 59. It is therefore unnecessary and disproportionate to erase evidence already properly received merely because the Applicant was absent. 60. What fairness requires is that the interlocutory judgment against the Applicant be set aside; that he be aorded an opportunity to plead his defence; and that the hearing be reopened to the limited extent necessary to permit him to participate meaningfully. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/835/eng@2026-08-27 6

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61. That participation must include an opportunity, where appropriate, to cross-examine witnesses whose evidence is relied upon against him and thereafter to call his own evidence. The Court will retain control over the reopened proceedings so that the opportunity now aorded is not converted into unnecessary repetition or delay. Disposition 62. In the result, I nd merit in the Notice of Motion dated 17th July 2026. Accordingly, I make the following orders: a. The interlocutory judgment entered against the 2nd Defendant/Applicant, John Kitonga Juma, on 4th April 2024 is hereby set aside. b. Any consequential orders founded exclusively upon that interlocutory judgment as against the 2nd Defendant/Applicant are likewise set aside. c. The Plainti shall, within seven (7) days from the date of this ruling, serve upon the 2nd Defendant/Applicant copies of the Amended Plaint, summons to enter appearance and all pleadings, witness statements, documents, submissions and other material led in the suit which have not already been supplied to him. d. The 2nd Defendant/Applicant shall le and serve his Defence and any accompanying documents and witness statements within fourteen (14) days after such service. e. The Plainti and the 1st Defendant shall be at liberty to le any consequential pleadings or supplementary material strictly arising from the 2nd Defendant’s Defence within the timelines to be directed by the Court. f. The proceedings already recorded shall remain on the court record. g. The hearing shall, however, be reopened to the extent necessary to aord the 2nd Defendant/ Applicant a reasonable opportunity to cross-examine witnesses whose evidence is relied upon against him and to tender his own evidence in defence of the claim. h. The recalling of witnesses shall be undertaken under the direction and control of the Court and shall be conned to what is reasonably necessary to secure the 2nd Defendant/Applicant's right to be heard. i. The 2nd Defendant/Applicant shall be supplied with certied typed proceedings and/or copies of the record upon compliance with the applicable registry requirements and payment of the prescribed charges, where applicable. j. Upon completion of the 2nd Defendant/Applicant's participation, all parties shall be aorded an opportunity to le or supplement their nal submissions before judgment. k. In view of the circumstances surrounding service and bearing in mind that the substantive dispute remains pending, the costs of the present application shall be costs in the cause. l. The Court is conscious that the Plainti has already prosecuted her case substantially and should not be subjected to further unnecessary delay. The 2nd Defendant/Applicant is therefore directed to adhere strictly to the timelines given herein. Any variation shall only be upon sucient cause being demonstrated to the Court. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/835/eng@2026-08-27 7

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DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026. ……………………….. HON.E.M. MWAMUYE SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/835/eng@2026-08-27 8

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