Wangaruru & another (Suing as administrators of the Estate of the Late Mary Wanjiku Wangaruro) v Kimathi & 2 others (Civil Appeal E183 of 2024) [2026] KEHC 1539 (KLR) (Commercial and Tax) (13 February 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION CORAM: F. MUGAMBI, J CIVIL APPEAL NO. E183 OF 2024 BETWEEN SERAH NDUTA WANGARURO TERESIA WAMBUI WANGARURO (Suing as Administrators of the Estate of the late MARY WANJIKU WANGARURO ……..… APPELLANTS VERSUS DOROTHY KAJUJU KIMATHI …..…….........…. 1ST RESPONDENT MAINA NJUE ………………………………………... 2ND RESPONDENT BENARD KARIUKI NJOROGE …………………... 3RD RESPONDENT (Being an appeal from the Ruling of Hon. PK Rotich, SPM delivered on 19th December, 2023 in Nairobi MCCOMM Civil Suit No. 8205 of 2004) JUDGMENT Introduction and Background HCCA NO. E183 OF 2024 JUDGMENT Page 1 1. This appeal arises from a Notice of Motion application dated 13th December 2022 and filed in Commercial Civil Suit No. 8205 of 2004. The appellants, who were the applicants in the trial court, sought leave of the court to substitute the 3rd defendant, Mary Wanjiku Wangaruro (the deceased), with her administrators Sarah Nduta Wangaruro, Teresia Wambui Wangaruro, and John Mungai Kinyanjui. They also sought to set aside an interlocutory judgment entered on 11th May 2005 together with subsequent orders emanating therefore, pending hearing and determination of the suit, an injunction restraining the respondents from dealing with the deceased’s property known as Olenguruone/Keringet Block 2/319 (Mwahe) until the matter is heard and determined and leave to file a defense and contest the claim on its merits. 2. The application was canvassed by way of written submissions and on 19th December 2023, the trial court delivered its Ruling dismissing the application with costs to the 1st respondent in this appeal. Aggrieved by the said Ruling, the appellants filed HCCA NO. E183 OF 2024 JUDGMENT Page 2 the instant appeal through the Memorandum of Appeal dated 26th July 2024. 3. In essence, the appellants’ case is that the learned Magistrate erred in both fact and law by failing to require formal proof of liability against their late mother, despite the necessity of establishing whether she had guaranteed the disputed loan. They maintain that the interlocutory judgment was irregularly entered since service was never effected, pointing out that no affidavit of service exists to confirm delivery of the amended plaint. They argue that in deciding whether to set aside the judgment, the Magistrate disregarded their defence, thereby denying them a fair hearing and infringing their constitutional right to access justice. 4. The appellants further contend that they have suffered grave prejudice by being condemned to repay a loan never secured by their deceased mother, even though the actual borrowers admitted liability. They criticize the Magistrate for dismissing their explanation that the deceased was unaware of the proceedings and that her heirs only HCCA NO. E183 OF 2024 JUDGMENT Page 3 discovered the suit after her death, and for wrongly attributing undue delay to them despite their prompt action once they became aware. 5. They also assert that the Magistrate failed to recognize the prejudice they would endure from execution of an ex parte judgment and unlawful attachment of property, absent any evidence that their mother guaranteed the loan. The appellants emphasize that justice was not seen to be done, as they were denied the opportunity to defend themselves even after substitution as administrators of the estate, and were condemned unheard to repay a loan they neither benefitted from nor guaranteed. Finally, they argue that the Magistrate erred in dismissing their claim as unmeritorious and in suggesting they lacked diligence, despite their consistent attendance and effort to prosecute the matter. 6. In reply to the appellants’ assertions, the 1st respondent maintains that the interlocutory judgment was properly entered pursuant to Order 10 Rule 4(1) of the Civil Procedure Act, as the deceased was duly served. She points to the HCCA NO. E183 OF 2024 JUDGMENT Page 4 affidavit of service filed in court as proof of proper service. Relying on this Court’s decision in Ammah Service Station Limited V Boss Customs Limited, [2025] KEHC 5792 (KLR), she argues that formal proof is unnecessary in liquidated claims where a defendant fails to respond. She further asserts that the deceased voluntarily offered her property as security for the loan advanced to the Kenya Informal Traders Association (KITA). 7. The 1st respondent emphasizes that the application to set aside the judgment was made nearly two decades after the interlocutory judgment had been entered, a delay the trial court rightly found inordinate. She also notes that substitution of parties was only sought in 2022, long after the appellants claim to have discovered the existence of the suit. Analysis and Determination 8. Since this is a first appeal, it is necessary to restate the scope within which this Court may re-evaluate HCCA NO. E183 OF 2024 JUDGMENT Page 5 the evidence. As was clearly set out in Selle & Anor V Associated Motor Boat Co Ltd & Another, (1968) E.A 123, a first appellate court is obliged to reconsider the evidence on record, evaluate it afresh, and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses and must therefore give due allowance to the trial court’s advantage in that regard. 9. This principal was further affirmed in Mark Oiruri Mose V R, [2013] eKLR where the court held that: “This Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.” HCCA NO. E183 OF 2024 JUDGMENT Page 6 10. Guided by these principles, and having carefully considered the record, the parties’ pleadings, and their written submissions, the central issue for determination is whether there was merit in dismissing the application dated 13th December 2022 seeking to set aside the interlocutory judgment entered on 11th May 2005. The appellants faulted the trial court for entering an ex parte judgment without proof of proper service upon the deceased. 11. The question of whether an ex parte judgment is regular or irregular has been succinctly addressed by the Court of Appeal in James Kanyiita Nderitu & Another V Marios Philotas Ghikas & Another, [2016] KECA 470 (KLR) where the Court held that a distinction must be drawn between regular and irregular judgments. A regular judgment is one entered after proper service of summons but in default of appearance or defence, while an irregular judgment is one entered without proper service of summons. HCCA NO. E183 OF 2024 JUDGMENT Page 7 12. In the latter case, the judgment is a nullity and must be set aside ex debito justitiae, without the need to consider the merits of the defence. Conversely, where the judgment is regular, the court has discretion to set it aside, considering factors such as the reason for default, whether the defence raises triable issues, and the interests of justice. 13. At the heart of the appeal before me is the question of whether proper service was effected upon the deceased. The trial court was confronted with this issue and noted that: “It is very clear that the 3rd defendant (deceased) was properly served with summons to enter appearance and had knowledge that this suit had been instituted, as demonstrated by the affidavit of service filed before the entry.” 14. The record however, confirms that an initial plaint dated 30th July 2004 was filed against KITA, Bernard Kariku Njoroge, Maina Njue, and Mary HCCA NO. E183 OF 2024 JUDGMENT Page 8 Wanjiku Wangaruro, (the 1st, 2nd, 3rd and 4th defendants respectively). While it is evident that the 1st respondent in this appeal did take out summons to enter appearance, what remains unclear is whether the summons, together with the accompanying pleadings, were ever served particularly, upon the deceased (the 4th defendant). An amended plaint dated 9th September 2004 was subsequently filed, yet even in respect of that pleading, there is no evidence on record to demonstrate that it was ever served upon the deceased. 15. Given that the appellants’ challenge squarely rests on the issue of service, the burden lay with the respondents to provide clear and cogent proof of such service. Indeed, nothing would have been easier than producing the relevant affidavit of service or other documentary evidence to demonstrate proper service. 16. The respondents’ position is further weakened by their own written submissions dated 12th September 2025. In those submissions, the 1st respondent expressly acknowledged that Mary HCCA NO. E183 OF 2024 JUDGMENT Page 9 Wanjiku Wangaruro, (the deceased and alleged guarantor), could not be traced until 2016, when it was discovered that she had already passed away. Her beneficiaries were only identified in 2019. This admission is telling, as it directly contradicts the assertion that the deceased had been properly served with the initial or amended pleadings in 2004 or 2005. If indeed she remained untraceable for over a decade, it is implausible that service could have been effected during the earlier period. 17. This inconsistency raises profound doubt as to the regularity of the interlocutory judgment entered in 2005 and strongly supports the appellants’ contention that the judgment was founded on defective or non-existent service. A closer scrutiny of the record further reveals that the only affidavit of service available is that sworn by Francis M. Njoroge on 17th May 2005. That affidavit confirms service of summons solely upon Bernard Kariuki Njoroge, one of the defendants, and makes no mention whatsoever of service upon the deceased, Mary Wanjiku Wangaruro. HCCA NO. E183 OF 2024 JUDGMENT Page 10 18. In the absence of any affidavit or credible evidence demonstrating that the deceased was served with either the original plaint or the amended plaint, the foundation upon which the interlocutory judgment was entered against her collapses. 19. Service of summons is not a mere procedural formality; it is the mechanism through which a defendant is brought before the court and afforded the opportunity to be heard. The failure to demonstrate service renders the judgment irregular and liable to be set aside ex debito justitiae, in accordance with the determination in James Kanyiita Nderitu & another (supra). 20. Had the trial court properly evaluated the evidence and the circumstances under which the personal representatives eventually discovered that judgment had been entered against their late mother without her ever being heard, it would have reached a different conclusion. The appellants cannot be faulted for the delay in challenging the judgment, as they were victims of events that were entirely beyond their control. Justice demanded that the court acknowledge this reality and set HCCA NO. E183 OF 2024 JUDGMENT Page 11 aside the interlocutory judgment, and restore the appellants’ right to be heard. The trial court’s failure to appreciate these circumstances resulted in a miscarriage of justice, which this appellate court must now correct. Disposition 21. Accordingly, for the reasons that I have set out above, I find this appeal meritorious. It is hereby allowed in its entirety, with the result that the application dated 13th December 2022 in Civil Suit No. CMCC 8205 of 2004 is allowed as prayed. The interlocutory judgment entered on 11th May 2005 is set aside, and the matter shall proceed to hearing on its merits. Given the age of the suit and the need to bring closure to the parties, I direct that the case be heard on a priority basis. The appellants shall have the costs of this appeal. DATED, SIGNED AND DELIVERED IN NAIROBI THIS 13 TH DAY OF FEBRUARY 2026. F. MUGAMBI JUDGE Delivered in presence of: HCCA NO. E183 OF 2024 JUDGMENT Page 12 Ms Wangui for the appellant/applicant Mr Mungai for the respondent Court Assistant: Lillian HCCA NO. E183 OF 2024 JUDGMENT Page 13