https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/99

JNM (Suing as Father and Next Friend of LWN) v Tereza & another (Civil Suit 126 of 2015) [2026] KEMC 99 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEMC 99 (KLR) Republic of Kenya In the Nakuru Law Courts Civil Suit 126 of 2015 PA Ndege, SPM May 26, 2026 Between JNM (Suing as Father and Next Friend of LWN) Applicant and Muturi Tereza 1st Defendant Samuel Kamau Gichuki 2nd Defendant Ruling 1.The 2nd Defendant to the suit herein, Muturi Tereza, brought the application herein seeking to set aside the ex-parte proceedings in this matter and that the court be pleased to unconditionally grant leave to her to file her statement of defence out of time and deem the annexed draft statement of defence as properly filed upon payment of the requisite fees in that regard. 2.The said application is supported by the grounds on the face of the application as well as the affidavit sworn by the 2nd Defendant/ Applicant. The plaintiff, James Njogu Munyi, filed a Replying Affidavit, sworn at Nakuru on 23/03/2026 opposing the application. Parties herein filed, and I do believe, exchanged their written submissions and arguments. Setting Aside and the Guiding Principles 3.It is a deeply entrenched principle that a court of competent jurisdiction can vary, vacate or set aside ex-parte proceedings and judgment it entered in default pursuant to a number of factors. Also, the power of the court and its discretion to set aside such a judgment to allow the hearing of a matter inter partes is unfettered. The court has a wide discretion to set aside such judgments where the defendant failed to enter appearance and/or file a defense. This jurisdiction is exercised to avoid injustice and hardship resulting mainly from accident, inadvertence or excusable mistake or error. In normal circumstances, courts do lean towards a policy of deciding cases on merits rather than encourage ex parte or default judgments based on procedural technicalities. There is also a constitutional requirement to that effect1.1Article 159. (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. (2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles – (a) justice shall be done to all, irrespective of status; (b) justice shall not be delayed; (c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3); (d) justice shall be administered without undue regard to procedural technicalities; and (e) the purpose and principles of this Constitution shall be protected and promoted 4.The Court of Appeal in James Kanyiita Nderitu & Another -vrs- Marios Philotas Ghikas & Another [2016] e KLR, expressed itself thus,In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defense, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defense, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defense raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other… (Emphasis added) Determination 5.The applicant herein attributed the failure to enter appearance and file defense to lack of service on the 2nd defendant. It contends that the affidavit of service relied on herein does not disclose proper personal service on the 2nd defendant. That the 2nd defendant came to be aware of the instant suit on 10/11/2025 when she was served with a proclamation of attachment/ repossession of moveable property dated 10/11/2025, a warrant of attachment of moveable property in execution of decree for money dated 30/07/2025, a warrant of sale of moveable property in execution of decree for money dated 30/07/2025 and a proclamation fee note of auctioneers’ charges dated 10/11/2025 through her WhatsApp number. That upon service of the same, she was notified that the auctioneers would take action upon the lapse of 7 days. That she then instructed her advocate on record, who upon perusal of the court file, discovered that the matter was filed in the year 2015 and that the same proceeded ex parte and a judgment had already been delivered against her. That the court file confirmed that the affidavit of service sworn on 18/11/2021 by one Ochiel Fredrick Awich that indeed the 2nd defendant/ applicant was never served with the initial pleadings in this matter personally. 6.In my humble view, and as correctly argued by the learned counsel for the 2nd defendant/ applicant, this explanation advanced is valid. It is common ground herein that the 2nd defendant was not personally served. The Affidavit of service is dated 31/05/2022 and it states at Paragraph 5 that service on the 2nd defendant was done through the 1st defendant who accepted the same and promised to forward her since he had instructions to receive service on her behalf. The 1st defendant is alleged to have been the driver of the motor vehicle that was involved in the road traffic accident herein, which is alleged to be owned by the 2nd defendant/ applicant. 7.Under our laws, serving a court summons to a co-defendant on the grounds that they are the driver of the other defendant (the registered vehicle owner) generally does not constitute valid service for the owner. Each independent defendant must be served individually in person or through an authorized agent. Even in motor vehicle accidents where a driver and an owner are jointly sued (such as under vicarious liability), they are treated as separate defendants. Leaving a summons with the driver is not valid service for the owner unless the driver is legally appointed as the owner's recognized agent. Since Order 5, Rule 13 of the Civil Procedure Rules requires the person served to acknowledge receipt, unacknowledged service on the driver on behalf of the vehicle owner will render the service legally defective for the owner. 8.I thus do hereby find that the 2nd defendant was not properly served and the ex parte proceedings and orders herein are therefore found to be irregular. The same should therefore be set aside ex debito justitiae. Moreover, the application herein has been filed as soon as the 2nd defendant realized that these proceedings were instituted against her, that is when she was served with the execution documents. That was on 10/11/2025. The application herein cannot therefore be said to have been filed after a prolonged, inordinate or unreasonable delay. 9.I thus do hereby allow the application with costs to the 2nd defendant/ applicant as follows:i.This honorable court hereby set aside the ex parte proceedings in this matterii.This honorable court hereby unconditionally grant the 2nd defendant/ applicant leave to file her statement of defence out of time.iii.Costs of this application awarded to the 2nd Defendant/ applicant RULING DATED, SIGNED AND DELIVERED AT NAKURU THIS 26TH DAY OF MAY, 2026ALOYCE-PETER-NDEGESENIOR PRINCIPAL MAGISTRATEIn the presence of;Plaintiff’s counsel: Njogu2nd Defendants’ Counsel: Wahome h/b Mathea2nd Defendant/ Applicant: n/aNjogu: We can take a men date to confirm the filing of the defence and compliance documents.Wahome: I do agree.CT: The 2nd defendant to file and serve her defence and compliance documents within 21 days. Parties to proceed and close the pleadings and PTD on 17/09/2026.