https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/625

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **CIVIL CASE NO. 529 OF 2024** **EVANS WEKESA BARASA & CATHERINE NEKESA WAFULA (Suing as widow and mother respectively and legal representatives of the Estate of Doreen Nangila Wafula………………………………………………PLAINTIFFS/RESPONDENTS** **VERSUS** **MORANGA ANYOKA GETANGE....………………………..................................1ST DEFENDANT** **ANYOKA OGOTI ELIJAH………………………………2ND DEFENDANT** **RULING** 1. The 1st Defendant/Applicant moved this court through a Notice of Motion dated 05th June 2026 under Certificate of Urgency expressed to be brought under Sections 1B and 3A of the Civil Procedure Act, Order 1 Rule 10, Order 10 Rule 11, Order 21 Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules, and all other enabling provisions of the law seeking the following orders: - 2. *Spent* 3. *Spent* 4. *Spent* 5. *That this Honourable Court be pleased to set aside the interlocutory judgment entered against the 1st Defendant/Applicant together with all consequential proceedings arising therefrom, including the judgment delivered on 11th November 2025, the decree, warrants of attachment, proclamations, costs, interest and all consequential orders* 6. *That the Draft Defence annexed hereto be deemed as duly filed and served upon payment of the requisite court fees and the 1st Defendant/Applicant be granted leave to defend the suit* 7. *That the costs of this Application be in the cause* 8. The Application was predicated on the grounds on the face of it and the Supporting Affidavit sworn on 05th June 2026 by the 1st Defendant/Applicant. 9. The crux of the instant Application is that the 1st Defendant/Applicant was never served with the Summons To Enter Appearance, the Plaint, pleadings and/or any other court process. The 1st Defendant/Applicant added thus took the position that the interlocutory judgment herein entered against him was irregular and ought to be set aside as of right. 10. The 1st Defendant/Applicant further averred that he has a meritorious defence against this suit raising serious and bona fide triable issues that can be gleaned from the Draft Defence which ought to be heard and determined on their merits. 11. The Plaintiffs/Respondents opposed the instant Application through a Replying Affidavit sworn by Evans Wekesa Barasa on 17th June 2026. The Plaintiffs/Respondents characterized the instant Application as frivolous, vexatious, scandalous, and an abuse of the due process of court. 12. They maintained that the Defendants herein were duly served with the Summons to Enter Appearance on 17th December 2026 which prompted the 2nd Defendant to enter appearance and file his Statement of Defence. They added that the 1st Defendant/Applicant’s failure to enter appearance within the prescribed period despite having been duly served caused them to move this court vide an Application dated 01st February 2025 for leave to serve the 1st Defendant/Application through substituted service, which application was allowed. 13. Consequently, the Plaintiffs/Respondents added that they duly served the 1st Defendant/Applicant by substituted service as ordered by this court through the Daily Nation newspaper of 14th April 2025. 14. The Plaintiffs/Respondents further averred that after the delivery of the judgment herein, the 2nd Defendant moved the High Court for leave to file an appeal against the judgment herein out of time which leave was granted by the High Court and that the 2nd Defendant was in the process of complying with the said conditions for the leave granted to him by the High Court to file an appeal out of time. 15. They added that the 1st Defendant/Applicant has not given any plausible explanation why it has taken him over 11/2 years to move this court for the orders sought. They also impeached the 1st Defendant/Applicant’s Draft Defence on record for failing to raise any triable issues worth of being determined on merits. They particularly took issue with the averment in paragraph 6 of the said Draft Defence that the accident herein was caused or substantially contributed by negligence by the Plaintiff and/or the person having the care, custody and control of the minor, yet the deceased herein was not a minor. 16. It is against this backdrop that the Plaintiffs/Respondents urged this court to dismiss the instant Application with costs for being a scheme by the Defendants to delay their enjoyment of the fruits of the decree herein. 17. In response, the 1st Defendant/Applicant filed a Supplementary Affidavit sworn on 06th July 2026 by the 1st Defendant/Applicant reiterating that the Plaintiffs/Respondents never served upon him Summons to Enter Appearance upon him, and that the Draft Defence raises substantial triable issues which can only be fairly and conclusively determined upon a full hearing. He also averred that the Civil Procedure Rules are explicit that physical service is the primary mode of service recognized under the law and that substituted service is only permissible where personal service has been proved unsuccessful, which was not demonstrated by the Plaintiffs. He added that service by substituted service never came to his attention since he only became aware of this suit during execution. 18. The instant Application was canvassed by way of written submissions. The Plaintiffs/Respondents and the 1st Defendant/Applicant filed their respective written submissions which reinforced their foregoing positions with legal arguments backed by lists of authorities. In the circumstances, it will not serve any purpose to set out a summary of the said written submissions in this ruling. **ANALYSIS & DETERMINATION** 1. The 1st Defendant/Applicant seeks to set aside the Interlocutory Judgment herein against him as well as the consequential orders arising therefrom. 2. Where judgment in default of appearance or defence or for failure to serve has been entered under the various provisions of Order 10 of the Civil Procedure Rules, 2010 (the Rules), Rule 11 of that Order gives the court a wide discretion to set aside or vary such judgment and any consequential decree or order “upon such terms as are just”. 3. In ***Shah –vs– Mbogo & Another [1967] EA 116,*** it was held, *inter alia*, that the Court’s discretion to set aside an *ex parte* judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. 4. In ***Chemolo & Another –vs– Kubende [1986] KLR 492,***the Court of Appeal pronounced itself thus regarding this subject - *“…..The concern of the Court is to do justice to the parties and the court would not impose conditions on itself to fetter the discretion. However, where a regular judgment has been entered, the court will not usually set it aside unless it is satisfied that there are triable issues which raise a prima facie defence which should go to trial….”(Emphasis added)* 1. Another germane issue to be considered by a court when faced with an Application like the instant Application is whether the ex parte judgment sought to be set aside is a regular or an irregular one. This can be gleaned from **Mwala v Kenya Bureau of Standards EALR [2001] 1 EA 148,** where the court stated: *“….[T]o all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte judgment. Where the judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justiciae for a court should never countenance an irregular judgment on its record.”* 1. Guided by the authorities above and having considered the pleadings, the submissions, and the authorities relied on by the parties herein, the issues that commend to this court for determination are: 2. Whether the exparte judgment was regularly entered 3. Whether the applicant has a defence on the merits that raises triable issues 4. *Whether the instant Application has been filed without undue delay* 5. *Whether any prejudice will be occasioned to the Plaintiffs/Respondents if the orders sought are granted* **Whether the interlocutory judgment against the 1st Defendant/Applicant was regularly entered** 1. The 1st Defendant/Applicant contended that he was not served with the Summons to Enter Appearance and the Plaint herein. He also argued that the Plaintiffs could not serve him through substituted service as they did since the record does not show if they failed to serve him through personal service despite their best efforts before resorting to substituted service. Therefore, the 1st Defendant/Applicant took the position that the interlocutory judgment herein against him was irregularly and the same ought to be set aside by this court. 2. The Plaintiffs/Respondents on their part maintained that they resorted to substituted service after their efforts to personally serve the 1st Defendant/Applicant failed to yield any fruits. 3. It is given that substituted service in this jurisdiction is only permitted where efforts to serve a party personally fail. 4. Turning to the record, the Affidavit of Service sworn on 18th December 2024 by Pius Wamalwa Kundu sets out the steps the Plaintiffs took to serve the Defendants with the Summons to Enter Appearance and the Plaint upon the Defendants. Pius Wamalwa Kundu averred in the said Affidavit of Service that he served the Summons To Enter Appearance and the Plaint upon the Defendants through their agent, one Brenda, at the Defendants’ business offices in Luanda. 5. It is worth noting that the above service undertaken by Pius Wamalwa Kundu caused the 2nd Defendant to enter appearance and file his Statement of Defence in this case. 6. The police abstract on record shows that the 2nd Defendant was the beneficial owner of motor vehicle registration number KDH 392 Q at the time of the accident, while the said motor vehicle’s copy of records shows that the 1st Defendant/Applicant was the said motor vehicle’s registered owner at the time of the accident. This uncontroverted evidence lends credence to the Plaintiffs/Respondents' assertion that the Defendants herein are business partners and that Brenda, who was served at the Defendants’ place of business, was the Defendants’ agent. 7. Order 5 Rule 10 (1) of the Civil Procedure Rules permits a Plaintiff to serve a Defendant at their place of business through the Defendant’s agent. This means that the service of Summons to Enter Appearance and Plaint effected by Pius Wamalwa Kundu upon the Defendants at their place of business in Luanda on 17th December 2024 was proper service within the meaning of Order 5 Rule 10(1) of the Civil Procedure Rules. 8. The 1st Defendant/Applicant’s failure to enter appearance and file a Statement of Defence within the prescribed time despite having been duly served must have informed the Plaintiffs, out of abundance of caution and acting under an honest and right belief that they had failed to personally serve the 1st Defendant/Applicant, to seek to serve the 1st Defendant/Applicant through substituted service. 9. The 1st Defendant/Applicant averred that they did not see the advertisement run in the Daily Nation newspaper on 14th April 2025 serving upon him the Summons To Enter Appearance and the Plaint herein. Inadvertence is a recognized reasonable explanation to rebut service by substituted service, as was aptly stated in **Mutiso Mulalya v Samuel Dominic Muathe & 2 others [2022] eKLR,** where the Court stated as follows: “ In the instant case, there is no dispute that the 2nd and 3rd Defendants were duly served with summons to enter appearance by way of substituted service by advertisement in the Newspaper and they neither entered appearance nor filed defence as required by law; hence the judgment entered against them was lawful and regular. The applicants have stated that they did not see the advertisement herein. In my view, it is possible that indeed the applicants failed to see the said advertisement, considering that not everyone in Kenya reads all the newspapers daily. In addition, it is possible that a person may read only a section of a newspaper and fail to read other sections like the classified/advertisement section, depending on what they deem relevant to them. Therefore, substituted service is based on the rebuttable presumption that the defendant shall be able to see the advertisement. The purpose of effecting service, in whichever form, is to notify the defendant of the pendency of a suit against them and to give them opportunity to defend themselves. The provision for substituted service is allowed as an alternative where personal service is not possible. The most desirable and effective mode of service being personal service. However, the bottom-line and the expected outcome of any mode of service is to make the defendant aware of the suit pending against them. If that outcome is not achieved, then subsequent proceedings will not result in substantive justice. In the circumstances, it is my considered view that the reason given by the Applicants that they did not see the advertisement and were therefore not aware of this suit is a reasonable explanation to warrant setting aside the exparte judgment.” 1. However, the authority above does not establish a fast rule that whenever a Defendant alleges that he never saw the advertisement, an interlocutory judgment must be set aside. To this end, this court finds support in **Maina v Mwangi & another (Environment & Land Case 50 of 2017) [2024] KEELC 7294** **(KLR)**where Angote J expressed himself thus: “While the law as set out above encourages the Courts to be sympathetic towards litigants who are served by way of substituted service and are likely not to have seen such service, it is worth considering whether the 1st Defendant fits the definition of such a litigant.” 1. This begs the question whether the 1st Defendant/Applicant is a litigant who deserves this court’s sympathy on account of having not seen the advertisement. This court has already made a finding that the Plaintiffs/Respondents' police abstract and copy of motor vehicle records on record proved on a balance of probabilities that the 2nd Defendant/Applicant is the 1st Defendant’s business partner. It thus follows that the 2nd Defendant/Applicant cannot pretend to have known the existence of this suit during execution, yet his business partner, who was served at their business premises, entered appearance, filed his Statement of Defence, and fully participated in the hearing of this suit. The 1st Defendant/Applicant simply refused to enter appearance and filed his Statement of Defence within the prescribed time only to be awakened by the execution process set in motion by the Plaintiffs/Respondents. 2. The foregoing leaves no doubt in this court’s mind that the 1st Defendant/Applicant is not that kind of litigant the Mutisyo Mulyalya case (supra) urges courts to be sympathetic to. 3. Given the above, this court holds and finds that the Defendant/Applicant was properly served with the Summons to Enter Appearance and the Plaint in this matter. 4. It is against this backdrop that this court holds and finds that the interlocutory judgment and the ex parte default judgment herein against the 1st Defendant/Applicant were regularly entered. **Whether the applicant has a defence on the merits that raises triable issues** 1. This court has had the benefit of perusing the 1st Defendant/Applicant’s Draft Statement of Defence herein. That Draft Statement of Defence relates to an accident involving the Defendants’ motor vehicle registration number KDH 392 Q and a minor. 2. The deceased in this case was not a minor. Therefore, the said Draft Statement of Defence cannot be said to raise triable issues between the 1st Defendant/Applicant and the Plaintiffs/Respondents which need to be determined on merit. **Whether the instant Application has been filed without undue delay** 1. Interlocutory judgment against the 1st Defendant/Applicant was entered on 06th May 2025. Judgment disposing of this matter was delivered on 11th November 2025. 2. The instant Application was filed on 05th June 2026. The 1st Defendant/Applicant has not given any plausible explanation why it took him over one year to seek the setting aside of the interlocutory judgment herein entered against him despite having been aware of the existence of this case. 3. The 1st Defendant/Applicant slept on his right to be heard. That right must slip away from him. 4. It should also be remembered that the Defendant/Applicant filed their Statement of Defence long before the delivery of judgment in this matter. The Defendant/Applicant was only failed by his counsel, who failed to move this court to set aside the interlocutory judgment entered against the Defendant/Applicant that was on record at the time of filing the Defendant’s Statement of Defence. 5. The foregoing shows that the Defendant was and is still desirous of defending this suit. **Whether any prejudice will be occasioned to the Plaintiffs/Respondents if the orders sought are granted** 1. The Plaintiffs/Respondents have been waiting to enjoy the fruits of their judgment since 11th November 2025. Granting the orders sought by the indolent 1st Defendant/Applicant who deliberately chose not to defend the Plaintiffs/Respondents' case against him will delay the Plaintiffs/Respondents from realizing the fruits of his judgment. It will also cause the Plaintiff/Respondent to incur further costs in attending court to testify without any justifiable cause. 2. It is against this backdrop that this court finds and holds that granting the orders sought by the 1st Defendant/Applicant will greatly prejudice the Plaintiffs/Respondents. 3. Be that as it may, when this court retreated to write this ruling, it came to this court’s attention that the 2nd Defendant herein appealed against the judgment herein on 24th April 2026 vide Bungoma High Court Civil Appeal No. E050 of 2024. The said appeal is pending before the High Court. 4. If this court is to grant the orders sought by the 1st Defendant/Applicant, Bungoma High Court Civil Appeal No. E050 of 2024 will be rendered moot. That is a legal absurdity which this court declines the 1st Defendant/Applicant’s invitation to engage in. **DETERMINATION** 1. Accordingly, for the reasons set out above, the 1st Defendant/Applicant’s Notice of Motion dated 05th June 2026 is bereft of merit. The same is dismissed with costs of Kshs. 10,000/= to the Plaintiffs/Respondents. **Read, signed, and delivered in open Court at Bungoma this 23rd day of July 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Bwonchiri for the Plaintiffs/Respondents Mr. Adeka for the 1st Defendant/Applicant C/A: Mr. Rioba