https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/97

Wafula v Kariuki & another (Civil Suit E485 of 2022) [2026] KEMC 97 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEMC 97 (KLR) Republic of Kenya In the Nakuru Law Courts Civil Suit E485 of 2022 PA Ndege, SPM May 19, 2026 Between Tom Wafula Plaintiff and Simon Kanyi Kariuki 1st Defendant Bungoma Line Sacco 2nd Defendant Ruling 1.The 2nd Defendant to the suit herein, Bungoma Line Sacco, brought the application herein seeking to set aside the ex-parte judgment entered herein against it and all subsequent and consequential orders and proceedings and that the court be pleased to grant leave to it to defend the suit against it. Further that costs of this application and the auctioneer be borne by the Plaintiff. 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’s chairman, Joseph Ngugi Kamau. The Plaintiff, Tom Wafula, filed a Replying Affidavit, sworn at Eldoret on 04/02/2026 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] eKLR, 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.To begin, there is an issue raised by the learned counsel for the plaintiff/respondent as to the competency of the application herein. Whether the firm of M/s Wakoli & Wakoli Advocates are properly on record. Learned counsel submitted that Order 9 Rule 9 of the Civil Procedure Rules mandatorily requires that a change/ appointment of advocates after judgment has been entered be through a court order. That in the case of S. K. Tarwadi Vrs Veronica Muehlemann [2019] eKLR, the Court struck out the Applicant’s application seeking orders to set aside judgment on grounds that counsel was improperly on record for failure to adhere to Order 9, Rule 9 of the CPR. 6.Order 9 Rule 9 of the Civil Procedure Rules, 2010 (CPR) provides that:When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be. 7.I find that the provisions only apply where there was a change in advocates, i.e. an advocate had acted for a parry before the entry of the judgment and a different advocate is now being appointed to take over the matter post-judgment. That was the situation in the above cited case i.e. S. K. Tarwadi Vrs Veronica Muehlemann [2019] eKLR. That is not the situation prevailing herein, as there was no advocate appointed by the 2nd defendant herein before the entry of the ex parte judgment sought to be set aside herein. There was in fact no entry of appearance by the 2nd defendant, and I thus do find the above provisions of Order 9 Rule 9 not applicable herein. The application and the firm of Wakoli & Wakoli advocates are thus properly before me. 8.The applicant herein attributed the failure to enter appearance and file defense to lack of service. It contends that the affidavits of service relied on herein are false and hence perjuries, especially on the venue of service and the person who received. In my humble view, and as correctly argued by the learned counsel for the plaintiff/ respondent, this explanation advanced is rather lame as they have not sought to cross-examine the process server or the manager who received the summons and the deponents of the affidavit of service as to the correctness of the averments therein. Furthermore, the affidavit of service disclosed a valid physical service. The Affidavit of service is dated 31/05/2022 and it confirms that the 2nd Defendant’s manager, Mr. Augustine Wangui Muriithi, of P.O. Box 522, Bungoma and the mobile number provided, was served with the summons, plaint, verifying affidavit and list of documents. That he in fact signed and dated the served copies. 9.That notwithstanding, I am supposed to look at whether there is any defence raising a triable issue. I have gone through the annexed draft and I do find that it discloses a serious triable issue mainly as to liability. Having found a defence raising triable issue herein, I do hereby allow the application, but subject to the payment of the costs so far incurred by the plaintiff in these proceedings. The payments be done before the draft defence is filed and, in any case, within 30 days of assessment. RULING DATED, SIGNED AND DELIVERED AT NAKURU THIS 19TH DAY OF MAY , 2026ALOYCE-PETER-NDEGESENIOR PRINCIPAL MAGISTRATEIn the presence of;Plaintiff’s counsel: AkinyiDefendants’ Counsel: n/aDefendant/ Applicant: n/aAkinyi: We take a mn date to confirm compliance by the defendants. I undertake to serve them since they are not in court today.CT: Mn. On 03/11/26. MNTIK