https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/817

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCC NO. E757 OF 2025** **YASIN JAMALI BWANA......................................................PLAINTIFF/RESPONDENT** **VERSUS** **AL-KAMAR TRADING COMPANY LIMITED........................DEFENDANT/APPLICANT** **RULING** 1. Before this Court is the Defendant/Applicant’s Notice of Motion dated 12th June 2026. The application principally seeks the setting aside of the interlocutory judgment entered on 8th July 2025 and the subsequent ex parte judgment delivered on 11th December 2025, leave to file a defence, recall of the Plaintiff for purposes of cross-examination, and consequential orders permitting the matter to be heard afresh. The Defendant additionally sought to have the process server summoned for purposes of cross-examination regarding the disputed service of summons. 2. The application is supported by the affidavit of Abdallah Ferozdin Azizdin, the Defendant’s manager. The Plaintiff/Respondent opposed it through a Replying Affidavit sworn by Yasin Jamali Bwana on 23rd June 2026. The Defendant thereafter filed written submissions in support of the application. Background 1. The Plaintiff instituted this suit through a Plaint dated 22nd May 2025 seeking general damages, special damages of KShs. 32,974, costs and interest arising from a road traffic accident which occurred on 13th February 2025 at about 5:50 p.m. along the Mombasa–Malindi Road near Shell Petrol Station. The Plaintiff alleged that while cycling home from work, motor vehicle registration number KDB 359L, Mercedes Benz Actros, belonging to the Defendant, was negligently driven and knocked him down. 2. The Plaintiff attributed the accident to the negligence of the Defendant’s driver, including excessive speed, dangerous driving, failure to maintain proper control, failure to stop or slow down and failure to exercise due care and attention. 3. The Plaintiff suffered fractures of the right tibia and fibula, a cut to the right leg, bruises to both hands and the right elbow, and cellulitis of the right leg. 4. The record shows that the Defendant did not enter appearance or file a defence. The matter subsequently proceeded to formal proof on 8th October 2025, after which judgment was delivered on 11th December 2025. 5. In that judgment, this Court found the Defendant 100% liable and awarded the Plaintiff general damages of KShs. 750,000 and special damages of KShs. 32,974, making a total of KShs. 782,974, together with costs and interest. 6. Execution thereafter commenced. Warrants issued on 2nd June 2026 reflected a sum of KShs. 939,270.61 as due, comprising the decretal amount, accrued interest, taxed costs and execution-related fees. The Defendant/Applicant’s Case 1. The Defendant’s application is founded principally upon an allegation that it was never properly served with summons to enter appearance and the pleadings. 2. The Defendant acknowledges ownership of motor vehicle KDB 359L and states that the vehicle was insured. Its manager, however, deposes that neither the Defendant nor its insurer received summons or notices relating to this suit. 3. The Defendant goes further and specifically disputes the authenticity of the stamp appearing on the documents relied upon by the Plaintiff as acknowledgment of service. It alleges that the receipt stamp accompanying the affidavit of service dated 30th May 2025 is a forgery and avers that it is able to produce evidence of the stamp actually in use by the company at the material time. 4. The Defendant states that it only became aware of the proceedings when proclamation notices relating to execution were found within its compound. It complains that the proclamation notices were not personally served and were not accompanied by supporting documentation. 5. Upon conducting inquiries, the Defendant states that it discovered that interlocutory judgment had been entered on 8th July 2025 and that final judgment had subsequently been delivered on 11th December 2025 without its participation. 6. The Defendant contends that its delay in approaching the Court was not deliberate and that the application was filed as soon as it became aware of the proceedings. It has also expressed willingness to comply with any terms imposed by the Court, including depositing such security as the Court may consider appropriate. 7. The Defendant has annexed a draft statement of defence. In it, the Defendant denies liability and pleads, in the alternative, that the Plaintiff substantially contributed to the occurrence of the accident. It alleges, among other things, that the Plaintiff exposed himself to risk, failed to wear reflective or protective gear and failed to pay sufficient attention to the presence of motor vehicle KDB 359L on the road. 8. The Defendant therefore submits that the proposed defence raises triable issues touching particularly upon liability and contributory negligence. The Plaintiff/Respondent’s Case 1. The Plaintiff opposes the application and maintains that the Defendant was properly served with the Summons to Enter Appearance and the Plaint on 30th May 2025. 2. The Plaintiff relies upon an affidavit of service sworn by Robinson Onyango Malombo, Advocate, who states that on 30th May 2025 at about 4:00 p.m., he proceeded to the Defendant’s yard/offices at Changamwe near Rubis Petrol Station roundabout along SGR Road, Mombasa, where he served the summons and the pleadings. 3. According to the process server, service was received by the Defendant’s operations manager, who refused to disclose his name but stamped the summons in acknowledgment of receipt. 4. The summons exhibited by the Plaintiff bears a circular stamp reading substantially “AL-KAMAR TRADING CO. LTD – RECEIVED – 30 MAY 2025 – MOMBASA.” The accompanying Judiciary-generated schedule also bears a similar stamp. 5. The Plaintiff therefore contends that the Defendant’s assertion of forgery is a bare allegation unsupported by forensic or expert evidence. 6. The Plaintiff further contends that the judgment was regularly obtained; that the Defendant’s draft defence consists of mere denials and raises no bona fide triable issues; that the application is designed merely to delay execution; and that setting aside the judgment would occasion him prejudice and unnecessary additional costs. Defendant’s Submissions 1. In its written submissions, the Defendant indicates that prayers 1–3 of its application are spent. It principally pursues setting aside of the interlocutory judgment, leave to file a defence, recall of the Plaintiff for cross-examination and costs in the cause. 2. It submits that the failure to enter appearance and file a defence was inadvertent and arose from lack of service. It argues that the application was filed without inordinate delay and that the proposed defence raises triable issues. 3. The Defendant relies upon the principles governing setting aside of default judgments and submits that the Court should consider whether the proposed defence discloses a genuine issue for trial. It identifies contributory negligence as one such issue. 4. The Defendant also specifically seeks cross-examination of the process server, arguing that there is no evidence showing that the unnamed operations manager who allegedly received the summons was authorised to receive service on behalf of the company. **Issues for Determination** 1. Having considered the application, the affidavits, the annexures and the submissions, I take the following to be the issues for determination: 2. Whether the Defendant was duly served with summons to enter appearance; 3. Whether the interlocutory and final judgments ought to be set aside; 4. Whether the draft defence raises triable issues; 5. Whether the Plaintiff ought to be recalled for cross-examination and the matter reopened; and 6. Who should bear the costs of the application. Whether the Defendant was duly served 1. Service of summons is not a mere procedural ritual. Section 20 of the Civil Procedure Act requires that a defendant in a duly instituted suit be served in the manner prescribed so as to enter appearance and answer the claim. 2. Where a defendant is a corporation, Order 5 Rule 3 of the Civil Procedure Rules governs service. Service may ordinarily be effected on the corporation’s secretary, director or other principal officer. Kenyan courts have repeatedly treated this requirement as central when determining whether corporate service was validly effected. 3. In this matter, the affidavit of service is not devoid of detail. It specifies the date, approximate time and place at which service allegedly occurred. It also identifies the recipient by designation as the Defendant’s operations manager, though it expressly states that the person declined to disclose his name. 4. There is also documentary evidence bearing what appears to be the Defendant’s company stamp dated 30th May 2025. That evidence cannot simply be ignored. 5. Equally, however, the Defendant has not merely stated in general terms that it did not receive the summons. It has specifically challenged the stamp appearing on the return of service and alleges that it was not the stamp in use by the Defendant at the material time. 6. The question before this Court at this stage is not whether the Defendant has already proved forgery beyond dispute. That would place the evidential burden too high at an interlocutory stage. What is material is that the Defendant has put the mode of service squarely in issue and has sought the process server’s attendance for cross-examination. 7. Order 5 Rule 16 expressly empowers the Court, where there is an allegation that summons was not properly served, to examine the serving officer on oath and make such further inquiry into service as it considers fit, after which it may declare service duly effected or direct fresh service. 8. The Defendant has specifically requested the invocation of that procedure. This is not a case where a party disputes service but makes no attempt to interrogate the affidavit of service. Indeed, the authority relied upon by the Defendant, William Langat v Joseph K. Sindai [2021] eKLR, recognises that a litigant disputing service would ordinarily be expected to seek examination of the process server. 9. There is a further difficulty with the Plaintiff’s evidence. The person allegedly served is described only as an operations manager whose name was not disclosed. There is presently no evidence demonstrating that this unnamed person was a director, secretary or principal officer within the meaning of Order 5 Rule 3, nor is there independent evidence showing that he had authority to accept summons on behalf of the company. 10. The mere presence of a company stamp is significant evidence, but in the face of a direct challenge to its authenticity and a dispute regarding the status and authority of the recipient, I am not satisfied that the matter can fairly be resolved merely by preferring one affidavit over the other. 11. Ordinarily, that conclusion would justify summoning the process server first and postponing determination of the application until after cross-examination. However, there is an additional question: whether, even assuming the judgment was regular, this Court should exercise its discretion to set it aside. Applicable principles on setting aside 1. Order 10 Rule 11 of the Civil Procedure Rules provides that where judgment has been entered in default, the Court may set aside or vary such judgment and any consequential decree or order upon such terms as are just. 2. The distinction between a regular and an irregular default judgment is important. Where summons were not properly served, the resulting judgment is irregular and is ordinarily liable to be set aside as of right. Where the judgment was regularly entered following proper service, the Court retains a discretion whether to set it aside. The Court of Appeal recently restated that distinction in Waweru v Maina [2025] KECA 50. 3. Where the judgment is regular, the discretion is intended to enable the Court to do justice between the parties and to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a litigant deliberately seeking to obstruct or delay justice. This remains the principle associated with Shah v Mbogo and Patel v E.A. Cargo Handling Services Ltd. 4. The Court must therefore look not only at the explanation for default but also at the nature of the proposed defence, the length of the delay, the prejudice to each side and whether justice can be achieved by imposing appropriate terms. Whether the proposed defence raises triable issues 1. A triable issue is not necessarily one that must ultimately succeed. At this stage, the Court is concerned with whether the proposed defence raises a bona fide question deserving determination at trial. 2. The draft defence does more than merely deny the quantum awarded. It disputes liability for the accident and specifically pleads contributory negligence on the Plaintiff’s part. It alleges that the Plaintiff failed to wear reflective or protective gear, failed to keep sufficient lookout and exposed himself to danger. 3. I am mindful that the Plaintiff’s evidence at formal proof was uncontroverted and that this Court consequently found the Defendant 100% liable. However, that finding was made in the absence of any competing account from the Defendant. 4. The apportionment of liability in a road traffic accident is a substantive question. Whether the Plaintiff contributed to the collision, whether the Defendant’s driver was wholly liable and whether the pleaded particulars of contributory negligence can be proved are issues that cannot properly be dismissed at this stage as wholly fanciful. 5. I am therefore satisfied that the draft defence raises at least one bona fide triable issue on liability and contributory negligence. 6. That conclusion does not amount to a finding that the defence will succeed. It merely means that the Defendant has disclosed an arguable defence deserving adjudication on its merits. Delay 1. Judgment was delivered on 11th December 2025. Execution materialised in June 2026, and the Defendant’s application was filed on 12th June 2026, following the proclamation process. 2. On the Defendant’s account, it became aware of the proceedings only when execution commenced. The application was therefore brought promptly after the alleged discovery of the judgment. On the material before me, I am unable to find inordinate delay after the Defendant became aware of the decree. Prejudice and proportionality 1. The Plaintiff has a judgment in his favour. He suffered injuries in February 2025 and has already undergone formal proof and obtained a quantified award. Setting aside that judgment inevitably delays his enjoyment of the fruits of litigation. That prejudice must be accorded real weight. 2. On the other hand, the Defendant faces execution of a substantial decree without having participated in the trial and while maintaining a specific challenge to the original service of summons. Its proposed defence also raises a substantive liability issue. 3. The overriding objective of the Court is better served by ensuring that, where reasonably possible, disputes are determined on their merits while protecting the successful party from prejudice occasioned by reopening proceedings. 4. This is therefore an appropriate case for the Court to exercise its discretion in favour of setting aside, but on terms. Functus officio 1. The Plaintiff argued that this Court is functus officio because it has already heard the matter and rendered final judgment. 2. That submission cannot prevail in the circumstances of the present application. Order 10 Rule 11 expressly reserves jurisdiction to the Court which entered judgment in default to set aside or vary that judgment and consequential orders upon just terms. 3. An application properly brought under the Civil Procedure Rules seeking setting aside of a default judgment therefore does not offend the doctrine of functus officio merely because a formal proof judgment has been delivered. Recall of the Plaintiff and reopening of the proceedings 1. Having concluded that the judgment ought to be set aside, the proceedings conducted in the Defendant’s absence cannot remain intact as the final determination of liability and quantum. 2. Section 146(4) of the Evidence Act permits the Court to recall a witness for further examination or cross-examination. The Defendant was not present when the Plaintiff testified and therefore had no opportunity to test his evidence through cross-examination. 3. In my view, however, the cleaner course is not merely to recall the Plaintiff while preserving the earlier formal proof as though the Defendant had participated in it. Once the interlocutory and final judgments are set aside, the suit should proceed afresh on the contested issues in the ordinary manner, subject to appropriate case-management directions. 4. The Plaintiff will therefore be at liberty to rely upon his evidence afresh, and the Defendant will have a corresponding opportunity to cross-examine him and call its own evidence. The process server 1. In light of my finding that the judgment should in any event be set aside in the exercise of discretion, a separate evidentiary inquiry into whether the judgment was irregular is no longer necessary for purposes of determining whether the Defendant should be admitted to defend the suit. 2. I nevertheless emphasise that the Defendant’s complaint concerning service was not frivolous. The identity and authority of the unnamed operations manager and the disputed company stamp presented a genuine controversy capable of inquiry under Order 5 Rule 16. 3. Since the substantive relief of setting aside is being granted, summoning the process server at this stage would serve no practical purpose and would unnecessarily prolong interlocutory proceedings. Security 1. The Defendant has itself stated that it is willing to abide by appropriate conditions, including depositing security. The Court must balance the Defendant’s right to be heard against the Plaintiff’s existing judgment and the delay and expense he has already incurred. I therefore consider it just that the Defendant be required to provide security as a condition of the setting aside orders. 2. The original principal award was KShs. 782,974. In the circumstances, directing deposit of the entire decretal sum would substantially reproduce the burden of the judgment before trial. Conversely, setting aside unconditionally would leave the Plaintiff wholly exposed despite having already successfully prosecuted the suit. 3. I consider security of KShs. 400,000 reasonable and proportionate. **Disposition** 1. Consequently, the Notice of Motion dated 12th June 2026 succeeds on terms, and I make the following orders: 2. The interlocutory judgment entered on 8th July 2025 is hereby set aside. 3. The ex parte judgment delivered on 11th December 2025, together with the consequential decree and execution process founded upon it, is hereby set aside. 4. All warrants of attachment and sale issued pursuant to the said judgment are hereby vacated. 5. The Defendant/Applicant shall deposit KShs. 400,000 as security in Court within thirty (30) days from the date hereof. 6. In default of compliance with order (d) above within the stipulated period, the orders setting aside the interlocutory and final judgments shall automatically lapse. 7. The Defendant shall file and serve its Statement of Defence within fourteen (14) days from the date of this ruling. 8. Upon service of the Defence, the Plaintiff shall be at liberty to file any Reply within the time prescribed by law. 9. In view of the setting aside orders above, the prayer to summon the process server for cross-examination is spent and shall not require separate determination. 10. The Defendant/Applicant shall bear the costs of the application, the setting aside having been necessitated by its failure to participate in the proceedings at the material time, notwithstanding the dispute concerning service. Orders accordingly. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**