4.His advocates, Rakewa Otieno & Co Advocates filed grounds of opposition dated April 17, 2023 in which they contended inter alia; the motion was misconceived, bad in law and an abuse of court process; the motion was frivolous, vexatious, trivial and should be dismissed; the motion did not meet the legal threshold, was incurably defective and had sought vague orders.
5.As directed by the court, both parties disposed of the motion by written submissions. The respondents who were acting in person filed their written submissions dated May 4, 2023. They identified two issues for determination (i) whether the motion was merited and, (ii) whether they were accorded a fair hearing.
6.On the 1st issue, it was their submissions they had not been served with pleadings and summons in accordance with the provisions of Order 5 Rule 22 (B) of the Civil Procedure Rules and consequently, judgement was rendered on March 2, 2023 in their absence; the interlocutory judgment was irregular.
9.Her counsel, Mr Rakewa, filed the appellant’s written submissions dated May 10, 2023. He submitted on the respondents’ two issues.
10.On the 1st issue counsel submitted the prayers sought in the motion were untenable; this court was an appellate court and not a trial court. Further the provisions of Order 5 Rule 22B of the Civil Procedure Rules that was relied upon by the respondents was misplaced. According to counsel, the motion was frivolous, abuse of court process and wasted the court’s time.
11.On the 2nd issue, counsel argued that from the judgment rendered on 2/03/2023, the court alluded there was deliberate failure by the respondents to take part in the proceedings and therefore the issue of fair trial did not suffice and they could not be granted leave to file a defence, lists of witnesses and documents.
Analysis and determination
12.Having perused the appellate record and carefully considered the motion, affidavit, grounds of opposition and rival submissions, in my considered view, the single issue that falls for determination is whether the respondents have met the legal threshold to warrant setting aside the judgment delivered on 2/03/2023.
13.Before dealing with the issue, certain disconcerting issues emerged from the motion. In accordance with the provisions of Orders 10 Rules 4, 5, 6, 9 and 11 of the Civil Procedure Rules, the respondents sought to set aside ‘interlocutory judgment’ that was ostensibly rendered on 2/03/2023.
14.No doubt, in rendering its decision on 2/03/2023, this court sat as an appellate court and these provisions of Order 10 was inapplicable in the circumstances of the case. Its jurisdiction as an appellate court is laid out in Section 78 of the Civil Procedure Act as follows: -
15.As a first appellate court, its role was to re-evaluate, re-examine and reassess the evidence from the trial court and come up with its own deduction. Put in another way, it could not render a summary or interlocutory judgment and is incapable of granting leave to the respondents to file witness statements and documents unless they had sought leave to file additional evidence in accordance with the provisions of Section 78 (1) (d) of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules; which they have not. See also the Supreme Court of Kenya decision in Mohammed Abdi Mohamud v Ahmed Abdulahi Mohamad & 3 Others  eKLR.
16.The question that suffices is whether the respondents’ blunder on reliance on inapplicable provisions of law and erroneously seeking to set aside “interlocutory” judgment allegedly rendered on 2/03/2023 is curable.
17.The appropriate provision of law for setting aside the judgment of a 1st appellate court is provided for in Order 42 Rule 23 of the Civil Procedure Rules which provides as follows: -
18.The court has also noted the impugned judgment was rendered on 2/03/2023 which is the date the respondents have referred to in their motion. It is not lost to this court the respondents are self-represented. It is apparent there was an error on nature of the judgment the respondents have sought to set aside.
19.It appears they jumbled up the nature of the judgment which is an excusable error. Reliance on inapplicable provisions of law is also curable. The court is concerned with carrying out substantive justice and is called upon to disregard technical errors. I hereby invoke Article 159 (2)(d) of the Constitution and consider the term ‘interlocutory judgment’ as a mere technical error.
20.I will now delve into the substance of the issue for determination. From the record, the respondents have alluded they were not served with documents by the appellant while on the other hand, the appellant was of the view that according to the impugned judgment, the court affirmed albeit being privy of the appeal, the respondents had failed to attend court.
21.Indeed, in paragraph 13 of the impugned judgment, the court stated the respondents had written a letter to it that they became privy of the appeal from the trial court and despite being aware of the mention date of January 17, 2023, they did not attend court. At no time did the court mention the respondents were served with a memorandum and record of appeal or submissions.
22.I have scrutinised the record and apart from a mention notice that was served upon the respondents on 7/11/2022, there is no evidence the respondents were served with the appeal documents including submissions.
23.As a first appellate court, Order 42 of the Civil Procedure Rules contains express and mandatory provisions of law requiring service of the memorandum of appeal, hearing notices and written submissions. Salient provisions of this Order 42 provide as follows: -
24.The purport of these provisions of law is to ensure all parties are kept abreast of steps being undertaken towards adjudication of the appeal. These provisions resonate with Article 50 (1) of the Constitution. See Pinnacle Projects Limited vs. Presbyterian Church of East Africa, Ngong Parish (Supra).
25.In the absence of service, I find the respondents are in the interests of justice and in accordance to the provisions of Order 42 Rule 23 of the Civil Procedure Rules entitled to have the judgment rendered on 2/03/2023 and all its consequential orders set aside. See Joseph M’Rukiri v Thangicia M’Imunya  eKLR.
26.It is trite law costs follow the event and each party shall bear their respective costs. Accordingly, for the reasons and finding set out above, I hereby make the following orders: -a.The Judgment of the court dated 2/03/2023 together with all consequential orders are hereby vacated and/or set aside, ex debito justitiae.b.The appeal shall be heard de novo.c.The matter shall be mentioned for directions on the re-hearing of the appeal on October 18, 2023d.Each party shall bear their respective costs of the motion.