(An appeal from the Ruling of Hon. J. Irura (P.M) in Nkubu PMCC No.18 of 2020 delivered on 29/7/2021)
1.The Respondent herein, the Plaintiff in the trial court, sued the Appellant vide a Plaint dated 18/5/2020 seeking the sum of Ksh. 120,100/=, interest thereon and costs of the suit. When the Appellant failed to enter appearance and file her defence, the Respondent requested for interlocutory judgment, which was duly entered on 18/8/2020. On 28/10/2020, the trial court, after noting that the Respondent’s case was for a liquidated claim, entered judgment, under Order 10 Rule 4 of the Civil Procedure Rules, in his favour against the Appellant for Ksh.120,100 together with costs and interest.
2.The Appellant filed an application under certificate of urgency dated 2/2/2021 seeking to have the judgment of 28/10/2020 set aside; leave to have the firm of Munene Kirimi & Co. Advocates come on record for her; and the annexed draft Defence to be deemed as having been properly filed. The trial court on 10/2/2021 allowed the firm of Munene Kirimi & Co. Advocates to come on record for the Appellant and granted interim stay of execution of its judgment and decree pending further orders of the court.
3.When the application was finally heard, the trial court, vide its ruling of 29/7/2021 ruled that:
4.On appeal, the Appellant filed her Memorandum of Appeal on 18/1/2022 listing 6 grounds as follows:
5.The Appellant urges the court not to visit the mistakes of her former advocate upon her and relies on Republic v Speaker Nairobi City County Assembly & Another Ex Parte (2017) eKLR and Prime Bank Limited v Paul Otieno Nyamodi (2014) eKLR. She urges that her intended defence raised weighty issues that ought to have been considered, and cites the Court of Appeal case of Amayi Okumu Kasiaka & 2 Others v Moses Okware Opari & Another (2013) eKLR. She attributes the delay in filing the application of 2/2/2021 to the fact that she was unaware that there was a judgment against her, and faults the trial court for failing to set aside the interlocutory judgment. She urges the court to allow her appeal explicitly in the interest of justice, and cites Ann Atieno Adul v Patrick Lang’at & Another (2020) eKLR.
6.The Respondent implores the court to disregard the contested ground that the ex parte judgment was irregular because no notice of entry of judgment was served upon the Appellant, since the same is a new issue which was not raised in the trial court and the Respondent did not have an opportunity to respond to it, and cites the Court of Appeal case of Kenya Hotels Limited v Oriental Commercial Bank Limited (2018) eKLR. He urges that the Appellant was properly served with the Summons and the pleadings, and the trial court did not err by finding that he would be prejudiced if the ex parte judgment was set aside. He urges that the delay in filing the application is inexcusable and inordinate since the Appellant was all along aware of the suit against her and did not bother to find out its position. He submits that the alleged mistake of Jackson Kaberia Advocate could only be taken into account if he had been properly instructed and appointed. He urges that the Appellant has no triable and arguable defence to set aside a lawful judgment of the trial court. He urges that all the grounds and issues raised by the Appellant in her application were properly analysed and addressed by the trial court. He urges the court to dismiss the appeal with costs or to award throw away costs in the event it allows the appeal, and cites Philip Kiprotich Tuitoek v Edna Jebiwott Kiplagat & 2 Others (2020) eKLR.
Analysis and Determination
7.This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. In doing so, the court must bear in mind that it did not have the advantage of seeing the witnesses testify. (See Selle v Associated Motor Boat Co. & others  E.A. 123).
8.The Appellant has raised a ground that the ex parte judgment was irregular because no notice of entry of judgment was served upon her. The Respondent has beseeched the court to ignore that ground because it has only been raised on appeal.
9.With respect, a judgment does not become irregular because the notice of entry of judgment is not given to the judgment debtor! The requirement of notice of entry of judgment is a post-judgment requirement, an antecedent for enforcement of judgment through “execution by payment, attachment or eviction”, without a bearing on the validity of judgment, which depends on the valid service of summons to enter appearance.
10.Order 22 rule 6 of the Civil Procedure Rules provides for application for execution as follows:
11.This court in Elizabeth Kavere & another v Lilian Atho & another  eKLR was of the view that:
12.The mode of execution chosen by the Respondent was arrest and committal to civil jail, thus the requirement for service of notice of entry of judgment was inapplicable.
Issue for determination
13.Having analysed the pleadings and the rival submissions as well as the cited authorities, the issues for determination are (a) whether the judgment of the trial court was regular and (b) whether it should be set aside.
14.Order 10 Rule 2 of the Civil Procedure Rules provides that-
15.This Court has had occasion previously to discuss the consequences of regular and irregular judgments in MERU HCCA NO. E010 OF 2020, Stanley Miriti v Julius Murungi Murianki (Suing on behalf of Agusta Karigu Murungi – Deceased,  eKLR as follows:
16.In this case, one Gichunge Miriti, an advocate of the High Court of Kenya swore an affidavit of service on 21/5/2020 averring that, on 20/5/2020, at around 2.00 p.m he served upon the Appellant summons dated 19/5/2020 and a Plaint dated 18/5/2020 at her shop known as Real Technology Wisdom at Kiigene – Nkubu. The Appellant was pointed out to him by the Respondent, and after accepting service, the Appellant declined to sign on his return copies. No application for the cross-examination of the advocate on his service of summons was made by the applicant.
17.In view of the Affidavit of Service sworn and filed by an advocate of this Court, this court is thus satisfied on a balance of probabilities that the Appellant was duly served with the summons and pleadings herein, but failed to either enter appearance and/or file her defence within the stipulated time. Since the said service was proper, it thus follows that the judgment of the trial court was regular.
Setting aside of the judgment
18.The trial court, in its impugned ruling observed that:
19.On a point of correction, the trial court is vested with discretion to set aside its judgment, and that would not be tantamount to sitting on appeal on its own decision. Order 10 Rule 11 of the Civil Procedure Rules provides for setting aside judgment as follows:
20.In the Court of Appeal decision of James Kanyita Nderitu v Maries Philotas Ghika & Another (2016) eKLR it was clarified that:As pointed above, the three-fold test for setting aside a regular ex parte judgment is whether, there is a defence on merits; whether the Respondent would in any way be prejudiced; and whether there is reasonable explanation for the delay.
21.The trial court duly considered the Appellant’s defence that she and the Respondent were lovers and found that”
22.The Appellant blamed Jackson Kaberia Advocate, a counsel she had allegedly instructed to represent her for her misfortunes. In the absence of any evidence of such appointment by way of a notice of appointment, this court finds that the Appellant was the sole author of her adversities. The consent on record, pursuant to Order 9 Rule 9 (b) of the Civil Procedure Rules was executed by Munene Kirimi & Co. Advocates, the outgoing advocates and Mwirigi Kaburu & Co. Advocates, the incoming advocates.
23.The court further finds that the Appellant did not offer a satisfactory explanation for her inordinate delay in filing the application to set aside the regular judgement.
24.The ground that the trial court failed to address all the issues raised by the Appellant in her pleadings is manifestly unfounded, because the trial court considered all the Appellant’s issues, as clearly seen in its detailed ruling.
25.On the whole, this Court does not find any justification on the test of Mbogo v. Shah (1968) EA 93, for the appellate interference with the exercise of discretion of a trial court, to depart from the findings of the trial court.
26.Accordingly, for the reasons set out above, the Court finds that the Appellant’s appeal is without merit and it is dismissed.
27.The appellant shall pay the costs of the Appeal to the Respondent.