https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/823

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MARIAKANI** **CIVIL SUIT NO E174 of 2025** **BENARD OCHIENG MUNALA...........PLAINTIFF** **=VERSUS=** **ONESS PELE LIMITED........………DEFENDANT** **RULING** **Background of the matter** 1. The matter is before court for Ruling on an application by the defence filed motion dated 2/6/2026. The motion was brought under certificate of urgency under **Order 10 rule 11**, Order 5 Rules 6,,8 12 15,16 and 17 of the Civil Procedure Rules 2010, sections 1A, 3 and 3A Civil Procedure Act. The application is supported by an affidavit of **Onsesmus Warui,** a director of the defendant sworn on 2/6/2026. The application seeks interim orders of stay of execution pending hearing and determination of the motion prayers a, b, and c. Spent. The substantive prayer (d) ***The ex parte judgment entered on 2/4/2026 the resultant decree and consequential proceedings and orders be set aside, e) the defendants be granted leave to enter appearance and file its statement of defence within such period as court may direct and the suit do proceed to hearing on merits. f) costs of the application be provided for.*** 2. **Grounds upon** which the defendant seeks said orders are stated (1 to 15 ), on the f**ace of the motion in summary** are: summons to enter appearance has never been served upon the defendant; *the defendant was not aware of this suit until 26/5/2026 when the defendant’s director Mr. Warui received the plaintiffs advocates letter dated 20/4/2026;* the judgment was obtained without proper service of summons as the service alleged was not effected upon the defendant given that the process server used a mobile number belonging to the defendants personally not the company’s official channel; the said process server has not demonstrated that the person allegedly served was authorized to accept service on behalf of the defendant. The defendant was thus denied the right to participate in the proceedings in breach of rules of natural justice and therefore the judgment is irregular, unlawful and should be set aside *ex debito justitiae.* 3. Had the defendant been served it would have immediately forwarded the summons to its reputable insurer for appropriate legal representation. 4. Defendant has moved court without unreasonable delay upon becoming aware of the suit. It has a defence that raises serious triable issues, and should be determined on merit rather than on procedural default. It is just under Article 159 of the Constitution and the overriding objective of the CPA to set aside the default judgment and allow the matter to be heard fairly justly and on substantive merits. 5. Defendant would suffer irretrievably if the judgment is allowed to stand while the plaintiff could be compensated by way of costs. It is just and equitable to set aside the proceedings and grant the defendant leave to defend the suit. 6. The supporting *affidavit* by Onesmus Warui reiterates the ground of the motion emphasising that the affidavit of service by Brian claiming he was served on 24/10/2025 through Whatsapp is untrue and misleading; as he never received summons to enter appearance as alleged through the mobile number 0731269400 is the personal number for the director defendant not the company. The company has its official postal address, email and designated communication channels through which the defendant should lawfully have been served. 7. The deponent urges that even if it were true which he denies that the summons were transmitted through his personal number as alleged in the supporting affidavit, the same would not constitute proper service upon a company. The process server has not demonstrated how he identified that the director was authorized to receive the court process on behalf of the company. Service in that manner falls short of service required for a corporate entity. The deponent has annexed copy of the police abstract OW 2 as a document evidencing the fact that the defendant was comprehensively insured by CIC General Insurance Limited and therefore the defendant would have immediately forwarded the summons to its insurer which opportunity it was denied owing to lack of service. 8. He urges that the defendant has serious defence that raises triable issues that warrant full ventilation in the interest of justice fairness. Draft defence annexed **OW 3** the person served was not an authorized officer or principal of the company for service of process. He urges on advice of counsel that service in this case was irregular as there was no proper service of summons, the judgment be set aside as of right in upholding the principles of due process and justice. The provisions of Order 5 Rule 3 were not complied with. The ex parte judgment should be *set aside as of right.* Defendant has acted promptly upon learning of the suit and instructed counsel to file the current application. 9. The **Motion is opposed** through the replying affidavit of **Benard Ochieng Munala**, the plaintiff respondent sworn on 6/6/2026 (jurat inadvertently shows *Brian Okoko* as deponent). 10. Plaintiff relies on the affidavit of service sworn by Brian Okoko of 27/10/2025 annexed as BO 1, and the affidavit of 26/5/2026 marked BO2 urging that the director Onesmus Warui by acknowledging receipt of the notice of entry of judgment served through **mobile no. 0731 269400** cannot lawfully deny receipt of the summons to enter appearance which were similarly sent via WhatsApp to the same mobile no. The said mobile number was retrieved from the police abstract as shown in the affidavit of service of 27/10/2025 paragraph 3. The police abstract is annexed to that return of service as is a copy of WhatsApp message info showing the WhatsApp message was delivered and read on 24/10/2025 as is a message showing the owner of the mobile number as Onesmus Koigu. Plaintiff respondent urges that it is in bad faith and intended to solely delay the plaintiff’s execution of the judgment for the defendant’s director to selectively accept service of some document and purport not to have received the summons yet the same mobile phone number was used in effecting service. In the circumstances a regular judgment is on record as all due processes were complied with before the judgment was made. 11. Justice will be served by dismissing the application in entirety. In the alternative if the court deems it just to set aside the proceedings, the defendant be condemned to pay throw away costs Kshs. 20,000/= and or the defendant be ordered to deposit the sum of Kshs. 182,000/= as security. 12. Both sides filed submissions in support of the rival positions: defendant applicant’s submissions dated 17/6/2026 while plaintiff applicant’s are dated 22/6/2026. 13. Applicant through Wachira Kingangai & Co Advocates in the submissions challenges process server's affidavit for alleged failure to disclose: how he identified number to serve through that it belonged to authorized officer of the company; whether the officer served acknowledged and accepted service expressly on behalf of the defendant company. Defence submits the applicant’s constitutional right to be heard was violated by failure to serve and thus applicant should not be penalized by setting conditions such as throw away costs or deposit of security, as it has a right to access the seat of justice. 14. Applicant has demonstrated that the default judgment was irregular due to improper service, applicant has been denied opportunity to be heard. The phone number used on WhatsApp to send summons as alleged, belongs personally to a director of the defendant not the company. Therefore service was irregular and judgment and all the proceedings should be set aside as of right. 15. **Analysis and findings:** The plaintiff's suit lodged by way of a Plaint dated 9/10/2025. Matter proceeded to formal hearing on 11/3/2026 after interlocutory judgment was entered on liability for the accident on **26/1/2026** due to the defendant's default in appearance and defence. The plaintiff **Benard Ochieng Munala t**estified on 11/3/2026 adopting his witness statement dated 9/10/2025 as his testimony. He produced documents in support of his case including the **police abstract** *exhibit 2 which both sides have cited in their affidavits for different contentions.* Being satisfied that statutory notice and demand letter were served upon the defendant and the insurance company and that summons to enter appearance were duly served on the 24th October, 2025 as shown the affidavit of 27/10/2025 sworn by Brian Okoko, this court found the defendant had neglected to enter appearance despite being served with summons to enter appearance and proceeded to hear the suit ex parte and rendered Judgment in favour of the plaintiff **on 2nd April 2026.** 16. **Setting aside application dated 2/6/2026 by defendant:** 1st question to answer is ***whether or not the judgment in this case was regular or not.*** Propriety of service of summons and pleadings lies at *the crux of an ex parte proceedings* impugned. Where service is irregular the proceedings are null ab initio. 17. The court has discretion to set aside judgment entered ex parte where it is warranted. Setting aside is as of right where it is proved summons to enter appearance were not served upon the defendant as no party should be condemned unheard. Where summons have been served and the defendant is in default, court ***has discretion*** *as provided Order 10 rule 11* to set aside the ex parte judgment whe*re it is just to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or errors.* The discretion is not designed to assist a person who had deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice. 18. The **Issue of want of service must 1st be determined.** In the affidavit by Onesmus Warui a director of the defendant he denies ever receiving summons to enter appearance as alleged by Brian Okoko in affidavit marked BO 2, but acknowledges that mobile no. 0731 269400 belongs to him; not the company: defendant. 19. The notice of entry of judgment letter dated 20/4/2026 that Onsesmus says moved him to act swiftly was sent to him via WhatsApp on the same number 0731 269 400. The director contends even if such service was done, it was irregular service upon a company as the company has its official communication channels including email, postal address and physical location through which it ought to have been served. The process server did not demonstrate to court how he determined that the director was an authorized person to receive the court process on behalf of the defendant company and thus his affidavit is misleading. 20. The defendant is in this case seeking setting aside as of right not invoking the court’s discretion on just terms. 21. Onesmus Warui is a director of the defendant. The plaintiff proved to court vide affidavit of 27/10/2025 that Summons to enter appearance and relevant pleadings were served on 24/101/2025 via WhatsApp to mobile **number 0731 269 400.** The number as disclosed in that return of service to belong to Onesmus Koigu, was retrieved from the police abstract. The same police abstract is relied upon by the defendant to show that it was comprehensively covered by an insurance company and it would this have sent the summons and pleadings to the said insurer to *deal, but did not do so because no summons were served upon it.* 22. In this case the ***mobile number for Oness Pele Limited*** shown in the police abstract 0731 269 400 belongs to its director the deponent Onesmus Warui in the supporting affidavit filed with the motion. **Order 5 Rule 3 (a) CPR** prescribes that service upon a corporation m*ay be served on ….the secretary,* ***director*** *or other principal officer of the corporation;* or b) if the process server is unable to find any of the officers of the corporation there are alternative modes of service then provided for. 23. Claiming that the process server has not demonstrated that Onesmus Warui is a person authorized to receive court process on behalf of the defendant company is thus an unfounded argument. 24. Liability for negligent use of a motor vehicle subject of the suit was the substance of the plaintiff’s suit. **Police abstract** under OB No 12/20/8/2025 relied upon showed vehicles involved in the accident were **KDP 491Q/ ZH 3445 owner indicated Oness Pele Ltd** insured by CIC Insurance and Motor vehicle KDL 910J/ZH 0579. The owner’s contact details shown in the abstract is **0731 269 400**. It is that number, not a strange unrelated contact, that was used to serve Summons to enter appearance as deponed by Brian Okoko in the return of 27/10/2025. The claim that the company has its official communication channels raised to impugn service via a director’s mobile number cannot in the circumstances of the subject matter assist the defence. Police noted the said number as contact for the owner of the subject vehicle. It is a reasonable assumption of likely facts that for whatever reasons the company was using its director’s number (an individual) as contact for the company. Anyone interacting with the said vehicle would reasonably believe and act as the plaintiff did, on the basis that the said number 0731 269400 whether personal or official belongs to Oness Pele Limited as implied in the public information. It would then fall upon the said Oness Pele Limited to disprove authority not the plaintiff. 25. Plaintiff proved to court through return by Brian Okoko advocate that on 24/10/2025 a WhatsApp message was sent to 0731 269 400, the message was delivered and read as shown in the ticks paragraph 4 of the return of service **BO 1’’.** The fact that the defendant did not notify its insurance is not proof of want of service. It may as well be that the director using 0731 269 400 inadvertently failed to notify the insurer upon receipt of the Summons. 26. Claiming the company has its official communication channels including phone number and email without any such proof in light of the publicly available contact number as shown in the police abstract is evasive of the defendant, as is the mere denial of receipt by Onesmus Warui. 27. The court is satisfied that defendant was served on 24/10/2025 via WhatsApp through 0731 269 400 a recognized contact for the defendant in the circumstances of this case. The court finds no basis for the allegation that the defendant was never served with ***summons to enter appearance.*** The court finds the allegation of want of service is lacking in candour. The court was satisfied of due service before entry of interlocutory judgment; and proceeded to hear the case ex parte. Proceedings leading to the judgment of 2/4/2026 are regular. 28. It is a principle that a regular judgment will usually not be set aside unless the court is satisfied triable issues are raised in the defence that warrant the matter to go to full trial. 29. The defendant has not in this case invoked court’s discretion having been adamant that it deserves setting aside as of right. The defendant did not attempt at all to offer to excuse the director’s failure to act upon receipt of summons leading to the defendant's failure to defend the suit due to some excusable mistake and not out of intention to evade and or obstruct the course of justice. The defendant has a duty to show there is sufficient cause to warrant court depriving the respondent in this case the fruits of judgment which it has failed to do so. 30. This court would thus have ***dismissed the application dated 2/6/2026*** having found the proceedings were regularly and lawfully conducted. 31. However, the plaintiff has in his submissions and replying affidavit in Prayers and paragraph 10 respectively sought ***alternatives of allowing*** *the motion on conditions.* 32. Given the *concession in the alternative,* made by plaintiff, and court’s discretion even where default judgment is regularly entered, the court has thus has considered the question whether the defendant’s d**raft defence** **OW 3** raises prima facie issues that warrant ventilation in full trial in exercise of court’s discretion. 33. The **draft defence** is made up of general *mere denials*, with the plaintiff blamed to have been an unlawful unauthorized passenger; on a frolic of his own; who was the sole cause of the accident and alleged injury if any paragraphs 5 and 6 of the draft defence. It is doubtful whether defendant intends to mount a defence in this case or just delay execution. 34. The words *of Apaloo J.A (as he was then)*In **Philip Chemwolo & another Vs Augustine Kebende (1982-88) KAR,** the words *of Apaloo J.A (as he was then) that* ***‘’courts exist for purposes of deciding the rights of the parties not for the purpose of imposing discipline………………….’’*** *hold true to date.* 35. Under **Article 159 of the Constitution** the court is required to deliver substantive justice. In this case the defendant though served on time and granted a fair chance to defend the suit but failed to do so, it is just to accommodate the defendant by balancing the scales of justice in ensuring the plaintiff’s due prosecution of his suit was not all to naught. The circumstances here call for the grant of **conditional leave to defend the suit**. The terms proposed by the plaintiff are lenient and fair. 36. The court grants leave ***to the defendant to file out of time its memorandum of appearance*** on **Conditions precedent** that: (**a)** the defendant shall within **30 days** of today **pay to the plaintiff Kshs. *20,000/= as thrown away costs (****b) Upon paying the said throw away costs the defendant will then have* ***14days only*** *to file and serve its statement of defence*, *witness statements and all relevant documents.* 37. Should the Defendant ***fail to comply: pay*** *to the plaintiff the throw-away costs as ordered* ***within 30 days of today, the*** leave granted to defend suit shall ***automatically lapse***and the Plaintiff shall be at liberty to execute. 38. On costs of the motion: Upon the Defendant’ full compliance with the conditions above, cost of the current application will abide the suit. 39. However, upon **default** the defendant applicant shall bear the plaintiff’s costs of this motion date 2/6/2026 assessed at ***Kshs. 10,000/= and*** *the plaintiff shall be at liberty to proceed with execution.* 40. Upon due compliance **with conditions above set**, the proceedings shall be reopened, and the court’s judgment delivered on 2/4/2026 set aside ***to allow inter partes hearing.*** The plaintiff has corresponding leave. Directions will issue as necessary. Mention on **15/10/2026 to confirm compliance with conditions.** **RULING DATED, SIGNED & DELIVERED THIS 19th DAY OF August 2026** **T. N. SINKIYIAN, Principal Magistrate** **IN PRESENCE OF:** For the plaintiff: **Ms. Kihoro: PRESENT** NBK Advocates LLP For the Defendant/applicant: Mr. **Wachira: PRESENT** Wachira Kingangai & Co advocates Court Assistant:…..**Wesonga & Zulekha**