https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6876

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CONSTITUTIONAL PETITION NO. E005 OF 2025** **IN THE MATTER OF THE ENFORCEMENT OF THE BILL OF RIGHTS UNDER ARTICLE 22(1) OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 25, 28, 29, 31, 40, 48, 49 & 50 OF THE CONSTITUTION OF KENYA, 2010** **BETWEEN** **OMONDI DICK OUKO……………………..……..…...1ST PETITIONER** **SHENAZ ABDALLA………………………….……..….2ND PETITIONER** **SHAMIM ERICA NESSY…………………………..…..3RD PETITIONER** **GETRUDE CHEROTICH…………………….…...…….4TH PETITIONER** **ELIZABETH WAMBUI…………………..…………...…5TH PETITIONER** **MUKAMI PEGGIE……………………………………….6TH PETITIONER** **ANITA NJOROGE………………………..…………...…7TH PETITIONER** **VERSUS** **THE INSPECTOR GENERAL OF POLICE..................1ST RESPONDENT** **OCS JUJA POLICE STATION……………….……….2ND RESPONDENT** **INSPECTOR MUNYIRI………………3RD RESPONDENT/APPLICANT** **PC MARTIN KIAMBI…………………4TH RESPONDENT/APPLICANT** **CORPORAL DAVID GACHERU..….5TH RESPONDENT/APPLICANT** **CORPORAL BONPHACE OUMA…..6TH RESPONDENT/APPLICANT** **PC GERALD KARIUKI………………7TH RESPONDENT/APPLICANT** **PC MOHAMMED HASSAN (IBRA)..8TH RESPONDENT/APPLICANT** **PC ESTHER MAINA…………………9TH RESPONDENT/APPLICANT** **IPOA…………………………………………………….10TH RESPONDENT** **JUDITH SERETI………………..…….11TH RESPONDENT/APPLICANT** **ELIAS KOECH………………………..12TH RESPONDENT/APPLICANT** **R U L I N G** **Brief Facts** 1. The application for determination dated 29th September 2025 seeks for orders of setting aside or varying all the *ex parte* proceedings in the matter herein and grant the applicants leave to file a response out of time as per the annexed copy hereof. 2. The petitioners/respondents filed grounds of opposition and a replying affidavit both dated 6th October 2025. **The Applicants’ Case** 1. The applicants state that they were not aware of the instant matter and only read the same in the media when the judgment was shared in the newspaper. The applicants aver that they have never been served with pleadings hence the matter proceeded *ex parte* without their knowledge. Thus, applicants state that they have been condemned unheard and it is only fair that they be accorded a chance to be heard. The applicants further state that service was only effected on the Inspector General Police, the OCS Juja and IPOA as confirmed in the affidavit of service annexed and marked ‘IM3’. 1. The applicants aver that they have a valid defence which raises triable issues which should be ventilated through a fair hearing. The applicants state that if the execution of the judgment is not stayed or set aside, they will be greatly prejudiced both professionally and financially based on the reason that they were denied the opportunity to defend themselves. **The Petitioners/Respondent’s Case** 1. The petitioners state that service was properly effected on the OCS Juja Police Station and the Inspector General of Police in accordance with **Order 5 Rule 19 of the Civil Procedure Rules** which provides that serving summons on public officers and soldiers is required to be sent to the head of the officer’s employer or to the commanding officer of the soldier. The 1st petitioner avers that he engaged the services of a licenced court process server one Robert Kimotho Mwangi who effected direct service on the 3rd applicant, Inspector Munyiri, at 0728267478, the 4th applicant, PC Martin Kiambi at 0701856124 via WhatsApp on 8th March 2025 and the 9th applicant PC Esther Maina at 0719580242 on 4th March 2025 pursuant to Order 5 Rule 22C of the Civil Procedure Rules. 2. The 1st petitioner avers that service was done on the said applicants as an abundance of caution but he did not include the WhatsApp service in the affidavit of service due to the unavailability of some of the respondent’s contact numbers. The 1st petitioner further states that on 3rd October 2025 he sent the 4th applicant Kshs. 1 to verify that the phone number he served via WhatsApp on 8th March 2025 belonged to him, he responded with an SMS message which shows that he was served. 1. The 1st petitioner states that the false assertions made by Inspector Munyiri regarding service are perjurious as they undermine the credibility of the applicants and suggest bad faith. 2. The applicants filed a Further affidavit dated 20th January 2026 and state that the respondents clearly indicate that he did not serve them individually with the pleadings of the suit as he avers that he served the OCS Juja Police Station on their behalf. The applicants further state that the 1st respondent confirmed that he did not have their telephone numbers which contradicts himself and confirms their averments that there was no service of pleadings. Furthermore, the screen shots of serve have no dates of service. 3. The applicants state that the 1st petitioner acting as a petitioner, an advocate for the rest of the petitioners and for himself raises a big lacunae on the aspects of representation. The applicants aver that the offence that was reported at the station was one dealing with pornography and they confiscated various pornographic material at the petitioner’s house where he had employed his co-petitioners. As officers, they are mandated in law to investigate, confiscate where necessary, make an arrest, give police bond where necessary and come up with the offence if any and charge the culprits in court after being advised by the director of public prosecutor. 1. The applicants state that they were transferred from Juja Police Station and thus serving the OCS at Juja Police Station on their behalf was uncalled for. The applicants aver that they were transferred before the commencement of the case thus personal service was required as they no longer served Juja Police Station. 2. The 1st petitioner filed a Further Replying Affidavit dated 14th April 2026 verifying and authenticating the screen shots of service. 3. Parties put in written submissions. **The Applicants’ Submissions** 1. The applicants submit that they were all serving at Juja Police Station back in the year 2023 when the petition was filed but they were later transferred to different stations however none of them were personally served. The applicants argue that serving the OCS Juja Police Station yet they had all transferred is not proper service. Further, since the petitioner alleged that he had all their phone numbers he ought to have filed an affidavit of service as proof of service. 2. Relying on the case of **James Kanyiita Nderitu & Another vs Marios Philotas Ghikas & Another [2016] KECA 470 (KLR)**, the applicants argue that the judgment entered was not regular due to lack of service. The applicants further argue that the judgment decrees that they pay the petitioners a substantial amount of money and being declared to pay such an amount of money for a matter they have a merited defence will be unfair and un warranted. The petitioner dealt with pornographic materials and a report was made at the police station since members of the public had reported that school going children were seen getting to the premises and upon raiding the premises, they found various sex dummies and confiscated the same calling for investigations. **The Petitioners/Respondents’ Submissions** 1. The petitioners rely on **Order 5 Rule 19 of the Civil Procedure Rules**, **Chapter 28 of the Police sanding Orders paragraph 5(7)** and the case of **Isaac Aluoch Polo Aluochier vs Stephen Kalonzo Musyoka & 216 Others** (no citation given) and submit that service upon the OCS Juja and the Inspector General of Police constituted proper and effective service. The petitioner further rely on **Order 5** **Rule 8 of the Civil Procedure Rules** and submit that service upon the Inspector General of Police and the Officer Commanding Station was lawful and the most practicable and effective. 2. Pursuant to **Order 5 Rule 22C** the petitioners submit that they served the 3rd, 4th and 9th applicants through their respective WhatsApp numbers and service is deemed effected upon receipt of a delivery notification. The petitioners argue that the omission of the said mode of service from the initial affidavit of service does not negate the fact of service. Further citing the cases of **James Kariuki & Another vs Peter Kariuki & 2 Others [2009] KEHC 3785 (KLR)**, **Law vs St. Margaret’s Insurance Ltd [2001] EWCA Civ 30 LTL** and Abdullahi Mohammed vs **Mohammud Kahiye [2015] eKLR**, the petitioners argue that the said omission is a procedural question and the court ought to focus on the substantive question of whether the applicants were aware of the proceedings instituted against them. The petitioners further rely on the case of **Okoiti vs The Cabinet Secretary National Treasury and Planning & 13 Others; Katiba Institute (KI) & 5 Others [2022] KEHC 12116 (KLR)** and submit that the matter being a constitutional petition one should rely on the Mutunga rules and not the Civil Procedure Rules. 1. The petitioners cite the case of **Export Processing Zone Authority & 10 Others (Suing on their own behalf and on behalf of all residents of Owino Uhuru Village in Mikindani, Changamwe Area Mombasa) vs National Environment Management Authority & 3 Others [2024] KESC 75 (KLR)** and submits that once the OCS Juja was served, it is presumed that he transmitted the summons to the officers under his command, unless the contrary is proved, which is not the case herein. The applicants have not annexed any affidavit by the OCS to explain the failure to relay the summons. Thus, in the absence of such explanation, the only reasonable inference is that the applicants failed to act, not due to any excusable error but through inaction or indifference. To support their contentions, the petitioners rely on the cases of **Obiero vs Severin & Another (Civil Appeal E201 of 2023) [2025] KEHC 2724 (KLR)** **(13 March 2025) (Judgment)** and **Gideon Sitelu Konchella vs Daima Bank Limited (2013) eKLR**. 1. The petitioners refer to the case of **Thayu Kamau Mukugi vs Francis Kibaru Karanja [2013] KEHC 6449 (KLR)** and submits that the draft defence by the applicants does not raise any triable issues but only consists of mere denials. 2. On the issue of the 1st petitioner representing his co-petitioners, the petitioners argue that the record shows that on 11th November 2025, the applicants sought leave to file an application challenging the 1st petitioner’s capacity to represent the co-petitioners and the court granted them 14 days to do so. However the applicants failed to file the intended application. When the matter came up for mention on 21st January 2026, the applicants appeared before the court and indicated that they had abandoned the intended application. Having abandoned that challenge, the applicants cannot be permitted to resurrect the same issue through the backdoor in the present application. 3. The petitioners submit that they will suffer significant and irreparable prejudice if the application is allowed as the petition was filed in April 2024 and the matter has since proceeded to conclusion. Thus setting aside the judgment would effectively reset the litigation clock and subject them to renewed proceedings, attendant delay and additional expense. The petitioners further rely on the case of **Rayat Trading Co. Limited vs Bank of Baroda & Tetezi** **House Ltd [2018] KEHC 10020 (KLR)** and submit that in the event the court grants the orders sought, the court should direct the applicants to pay throw away costs and depositing of the security to safeguard the integrity of the proceedings. 1. The applicants filed Supplementary Submissions dated 27th April 2026 and submit that the affidavit of service dated 7th March 2025 confirms that the process server served the OCS Juja Police Station without disclosing his name but confirms that whoever he served was two months old in the station and confirmed that he was not there when the alleged office is alluded to have occurred. 2. The applicants further submit that the alleged forensic evidence is not helpful since there was no affidavit of service annexing the said evidence and that no screen shots were shown to the court before the matter proceeded *ex parte*. **The Law** **Whether the *ex parte* proceedings ought to be set aside** 1. It is trite law that the Civil Procedure Rules remain the parent rules in civil matters where there is a lacuna in a procedure under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules). This was stipulated by Ogola J. in the case **of Kooba Kenya Limited vs County Government of Mombasa [2020] eKLR** as follows:- **The Mutunga Rules are mainly concerned with procedures to protect fundamental rights of parties in a petition. The fact that the said rules are silent in regard to how a party can replace its advocate after an entry of judgment is not meant, in my view, to create a confusion, or a free for all enterprise where parties can do as they wish when it comes to replacing their advocates in matters in a petition. The Civil Procedure Rules still remain the parent rules in civil matters where there is a lacuna in a procedure under the Mutunga Rules, the Civil Procedure Rules must apply. The other way to look at it is like this. The Mutunga Rules deal with issues of procedural justice in petitions.** 1. Under **Order 10 Rule 11 of the Civil Procedure Rules** the court can set aside or vary such judgment and any consequential decree or order upon such terms as are just. It provides as follows:- **Where judgment has been entered under this order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.** 1. The Court of Appeal in the case of **Thorn PLC vs MacDonald [1999] CPLR 660** stipulated the following guiding principles to consider when setting aside an *ex parte* judgment;- 2. **While the length of any delay by the defendant must be taken into account, any pre-action delay is irrelevant;** 3. **Any failure by the defendant to provide a good explanation for the delay is a factor to be taken into account, but is not always a reason to refuse to set aside;** 4. **The primary considerations are whether there is a defence with a real prospect of success, and that justice should be done; and** 5. **Prejudice (or the absence of it) to the claimant also has to be taken into account.** 6. It is noted that proper service on the 1st, 2nd and 10th respondents was effected. The applicants herein argue that the rest of the respondents were never served with the petition and therefore the default judgment entered is irregular and as such it ought to be set aside. The applicants further argue that the petitioners ought to have served them personally as opposed to serving the OCS Juja Police Station as they allege that they did. 7. The Court of Appeal in **James Kanyita Nderitu vs Maries Philotas Ghika & Another [2016] eKLR** held:- **From the onset, it cannot be gainsaid that a distinction has always existed between the default judgment that is regularly entered and one which is irregularly entered. 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 defence 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 defence, as the case may be, the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer….** **In an irregular judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside *ex debito justiciae*, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular, it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system….Such a judgment is not set aside in the exercise** **of discretion but as a matter of judicial duty in order to uphold the integrity of the judicial process.** 1. **Rule 14 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules)** provides for service of the **petition where the petitioner shall serve the respondent with the petition, documents and relevant annextures within 15 days of filing or such time as the court may direct.** **(2) Proof of service shall be the affidavit of service set out in Form B in the Schedule with such variations as may be necessary.** 1. Although the Mutunga Rules under Rule 14 provide for service of the petition, it does not explicitly or in detailed form provide for the mode of service or give alternatives where personal service cannot possibly be effected. It therefore calls for this court to also consider the provisions of the Civil Procedure Rules on service. 2. **Order 5 Rules 6, 7, 8, 14, 17, 19, 22B &22C of the Civil Procedure Rules** provides for various modes of service on defendants. This includes substituted service, service on public officers and soldiers, mobile enabled messaging applications. What is depicted from the provisions of the civil procedure rules is that as a general rule service of summons shall be effected on each defendant. Order 5 Rule 7. Generally service should be made on the defendant personally or his empowered agent. 3. From the record, the affidavit of service which is undated shows the petitioners served the OCS Juja on 7th March 2025. The petitioners further served the Inspector General of Police on 6th March and IPOA on 7th March 2025. The affidavit of service dated 15th March 2025 was duly filed herein. Thus it is clear that the 1st , 2nd and 10th respondents were duly served. Furthermore the 1st petitioner alleges to have served the 3rd, 4th and 9th respondents through WhatsApp however he did not file an affidavit of service to prove service. Proof of service has clearly been set out in Rule 14 of the Mutunga Rules and Order 5 Rule 15 of the Civil Procedure Rules. Thus failure to serve the petition goes to the core of the determination of the petition. This was stipulated in the case of **Mohammed Odha Mrao vs The County Returning Officer, Tana River & Others [2013] eKLR (Malindi EP No. 15 of 2013)** the court pronounced itself on the issue of service:- **The purpose of service of a petition is to give notice to the respondents or persons affected by the petition that a petition had been filed challenging the outcome of the elections and the grounds upon which the challenge had been instituted to enable them prepare their responses and to defend their respective positions regarding the conduct of the contested elections. Service provides the respondents with an opportunity to be heard and goes to the root of all important tenets of the principle of fair trial and good administration of justice…..Failure to serve a petition is a matter that goes to the very core of the proper and just determination of the petition and cannot be wished away.** 1. The Court went further and held that:- **Service of the petition is a mandatory requirement and a petition that has not been served cannot proceed for hearing as the respondent is denied the opportunity to contest the facts in the petition. Mere knowledge of a petition by the respondent can neither cure want of service nor discharge the burden imposed on the petitioner by law.** 1. The petitioner on his own behalf and on behalf of the 2nd petitioner purported to have effected service on all the applicants. However, only the counsel for the 10th and 11th applicants attended court when this petition was mentioned for the first time. The two petitioners filed their responses. The 1st and 2nd respondents did not file their responses to the petition though served. 1. Thus, it is my considered view that the applicants were never served with the petition. As such, they were denied of their rights to be heard. This is a right provided for under Article 50 of the Constitution and ought to be accorded to all parties in either civil or criminal proceedings so as to participate in the case filed against them. 2. Consequently, the *ex parte* proceedings and judgment dated 20th September 2025 are hereby set aside. Accordingly, the application dated 29th September 2025 has merit and is hereby allowed. The 1st – 9th respondents have 14 days to file their defence. 3. It is hereby so ordered. ***RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 14TH DAY OF MAY 2026.*** **F. MUCHEMI** **JUDGE**