1.The subject of this appeal emanates from a ruling rendered by the trial court in respect of a notice of motion dated 10/02/2023 by the respondent who was then the defendant. In it, the respondent sought to set aside the ex parte judgment that was rendered against him by the trial court on 12/07/2022.In the exparte judgement, the trial court declared the respondent a trespasser, issued eviction orders and granted the appellant costs.
2.In the motion, the respondent contended he had never been served with summons to enter appearance, hearing or mention notices or notified that he was expected to enter appearance within certain timelines. It was only upon inquiring progress of the suit from the court registry that he discovered judgment had been entered against him. He asserted he had a good defence that raised triable issues.
3.In opposition to the motion, the appellant filed a replying affidavit dated 1/03/2023 and asserted the respondent was privy of the suit and had been served with summons to enter appearance and pleadings as evidenced by the return of service on record deposed by a process server who on several other occasions, had served the respondent.
4.The appellant contended the proceedings of Siaya Criminal Case No. E571/2021 which involved the same parties affirmed the respondent was alive of the pending ELC case that is the subject of this determination.
5.The matter was canvassed by written submissions and the trial court in a ruling rendered on 20/04/2023, allowed the respondent’s application on grounds that parties had unfettered right to be heard and ordered the appellant to pay throw away costs.
Analysis and determination
12.For this court to interfere with the exercise of discretion by the trial court, it must be demonstrated its decision is clearly wrong because it misdirected itself or because the court acted on matters which it should not have acted upon or because it failed to take into consideration matters which it should have taken into consideration. See Mbogo and Shah (Supra).
13.The law encompassing the power of the court to set aside an ex parte judgment is found in Order 10 Rule 11 of the Civil Procedure Rules which states: -
14.The Court of Appeal’s decision of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another  eKLR which I hereby adopt, made a distinction between a regular default judgment and an irregular judgment as follows: -
15.In finding the motion merited, the trial court stated the respondent had every right to be heard. The question that suffices is whether the ex parte judgment was a regular default judgment or an irregular judgment.
16.This was not disclosed, nonetheless, taking into consideration this appeal emanates from a ruling on setting aside an ex parte judgment entered against the respondent, I am called upon to revisit the entire record from the date of instituting suit to the date of entry of the impugned ruling.
17.It is only by examining the record that this court will render an informed decision and more so, the issue of whether the ex parte judgment was a regular default judgment or an irregular judgment and consider circumstances under which either could be set aside.
18.In doing so, this court will bear in mind it shall not lightly differ with the decision of the trial court. This court adopts the position taken by the Court of Appeal decision in Pithon Waweru Maina v Thuka Mugiria eKLR which stated:-
19.Now turning to the record, after filing his plaint on 19/08/2021, the appellant allegedly served the respondent in accordance with Order 5 Rule 6 of the Civil Procedure Rules and filed a return of service deposed on 26/10/2023.
20.A scrutiny of this return of service demonstrates that though it complies in many respects with Order 5 Rule 13 of the Civil Procedure Rules and Form 4 thereof, it does not disclose how the respondent was known to the process of server or who identified him to the process server or the time of service or whether the process server explained to the respondent the purpose of service.
21.All these lends credence the respondent was not served and notwithstanding the respondent was aware of the suit through the criminal proceedings that involved the parties, the ex parte judgment was without doubt irregular.
22.In the absence of service of summons and pleadings, I need not belabour much on the other returns of service but in particular, I will single out a return of service deposed on 11/03/2023 wherein the process server allegedly served the respondent at his shop but the appended hearing notice shows he was served through the office of the local assistant chief.
23.Obviously and accordingly, the defendant was not served with a hearing notice in accordance with the provisions of Order 12 Rule 2(a) of the Civil Procedure Rules. This non service culminated into his absence on the hearing date and the case proceeded without him hence the impugned ex parte judgment.
24.In all, in the absence of proper service of summons and the judgment being irregular, the trial court had no discretion but to set aside the ex parte judgment as a matter of right. Therefore, this court finds the trial court did not err in arriving at the impugned ruling.
25.Consequently, having carefully considered this appeal in its entirety, I must conclude the trial court did not err in setting aside the default judgment and all its consequential orders.
26.Ultimately, I find and hold that this appeal is devoid of merit. I hereby dismiss the appeal and uphold the ruling of the trial court delivered on 20/04/2023. Accordingly, the appeal fails and is hereby dismissed with no orders at to costs. It is so ordered.