Mulee v Daud & another (Suing as the next of kin and legal representative of the Estate of Musyoki Daudi - Deceased) (Civil Appeal E093 of 2022) [2025] KEHC 17877 (KLR) (27 November 2025) (Judgment)
Neutral citation:
[2025] KEHC 17877 (KLR)
Republic of Kenya
Civil Appeal E093 of 2022
EN Maina, J
November 27, 2025
Between
Mathew Mbithi Mulee
Appellant
and
Joyce Ndulu Daud & Patrick Musyoka Kanyasya (Suing as the next of kin and legal representative of the Estate of Musyoki Daudi - Deceased)
Respondent
(Being an appeal from the ruling of M A Otindo PM delivered on 29th June 2022 in the Chief Magistrate Court at Machakos Civil Case No. 419 of 2018)
Judgment
1.By Plaint dated 22nd January, 2018 the Respondents sued the Appellant for general and special damages for fatal injuries suffered by their kin in an accident which occurred on 28th July 2014 when the deceased was lawfully riding a motor cycle Reg. No. KMCZ 721M along the Machakos- Kangundo Road at a place called Charity. The Respondents blamed the Appellant, his authorized driver, servant and or agent, for not controlling and/or managing his motor vehicle Reg. No. KXH 888 causing it to veer off its lane and into the lane of the motor cycle No. KMCZ 721M hitting and knocking the deceased down.
2.The defendant did not enter appearance and interlocutory judgement was entered against him on 6th June 2019. He subsequently filed an application seeking to set aside that judgment and that sought leave to defend the suit but the application was dismissed.
3.Thereafter the learned Magistrate heard the formal proof and then entered judgment for the Respondents as follows:-a.Liability 100% In favour of the Plaintiffb.Pain and suffering Kshs 20,000c.Loss of expectation of life Kshs 300,000d.Loss of dependency Kshs 2,640,000e.Special damages Kshs 55,670f.Costs and interest
4.Being aggrieved the Appellant preferred this appeal. The same is premised on grounds that;
5.The Appeal was canvassed by way of written submissions.
6.Drawing from the case of Abu Chiaba Mohamed v Mohamed Bwana Bakari & 2 Others Civil Appeal No. 238 of 2003, Ephraim Njugu Njeru v Justin Bendan Njoka Muturi & 2 Others Civil Appeal No. 314 of 2003 (2006) eKLR Counsel for the Appellant submitted that one must seek leave of the court when undertaking substituted service and must satisfy the court that the defendant cannot be served physically. Counsel submitted that having established that the Respondent herein did not seek leave of the court to serve the pleadings through substituted service, it is clear that the interlocutory judgement entered against the appellant herein was irregular and the receipt of postage as not sufficient proof of service.
7.Counsel contended that the annexed draft statement of defence raised serious triable issues which needed to be interrogated during hearing. He relied on the cases of Gupta v Continental Builders Ltd [1976-80] 1 KLR 809, and James Kanyiita Nderitu & another vs. Marios Philotas Ghikas & another [2016] KECA 470 (KLR).
8.While relying on the cases of Co. Ltd CA 38 of 1998 and Mania -v-Muriuki (1984) KLR 407, Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd -v- Augustine Kubede (1982-1988) KAR, learned counsel submitted that that the discretion of a court to set aside or vary ex-parte judgment entered in default of appearance or defence is unfettered one and is intended to be exercised to avoid injustice. He urged the court to allow the appeal and set aside the judgement of the trial court.
9.For the Respondents, it was submitted that the Respondents satisfied the requirements under Order 10 of the Civil Procedure Rules in order to qualify for the interlocutory judgment and the final judgment. Counsel contended that they produced a return copy of the summons to enter appearance which clearly had the Appellant’s signature at the back together with the date and time the summons were received and filed an Affidavit of service dated 25th April 2019 sworn by one Catherine Mwikali which was sufficient proof that the appellant received the pleadings. Counsel urged this court not to disturb the ruling of the trial court but instead uphold the same and dismiss this appeal with costs to the Respondents.
Determination
10.I have considered the pleadings, the rival submissions and the law.
11.The genesis of this matter is the dismissal of the Applicant’s application which sought to set aside the defendant judgment entered on 6th June 2019 and leave to defend the suit. In that application the Appellant averred that he was only served with the summons to enter appearance but not the plaint.
12.The Respondents on the other hand averred that the appellant was served with the pleadings but failed to enter appearance and was also notified about the judgement on 18th December 2019.
13.Order 5 of the Civil Procedure Rules state as follows in respect to service of summons:
14.The Appellant admitted that he was served with the summons to enter appearance but denied service of the plaint. However, there is a return of service dated 25th April 2021 which indicates that he was on 13th September 2018 served with the summons to enter appearance and a copy of the plaint together with annexures. Order 10 of the Civil Procedure Rules sets out the consequences of non-appearance, default of defence and failure to serve and it is upon this order that the impugned judgment was entered. Whether or not to set aside ex parte judgement is discretionary. The discretion is unfettered but it must not be exercised judiciously but whimsically or capriciously. The discretion is intended to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.
15.In the case of Remco Limited vs. Mistry Jadva Parbat & Co. Ltd. & 2 Others Nairobi (Milimani) HCCC No. 171 of 2001 [2002] 1 EA 233 the Court set out the principles guiding setting aside ex parte judgments as follows:
16.In the case of CMC Holdings Ltd v James Mumo Nzioki [2004] KECA 143 (KLR) the Court of Appeal stated:-
17.The Appellant herein was duly served with the plaint. He did not enter appearance and the Respondent was entitled to apply for an interlocutory judgment. The court below cannot be faulted for granting the interlocutory judgment and for proceeding with formal proof and subsequently entering final judgment. I have considered the draft defence filed by the Appellant and in my view the same was a mere denial and did not raise any triable issues. In the premises this appeal is devoid of merit and it is dismissed with costs to the Respondent.
It is so ordered.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 27TH DAY OF NOVEMBER 2025.E. N. MAINAJUDGEIn Presence Of:Mr. Kirui for AppellantMr. L. M. Wambua for RespondentsC/A: Geoffrey