https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/683

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL SUIT NO. E282 OF 2025** **ZEBEDAYO BURUDI WANKA.………………………………………………PLAINTIFF/RESPONDENT** **VERSUS** **MAUREEN NYAKERARIO OKINYI……………………………………………….DEFENDANT/APPLICANT** **RULING** 1. This ruling determines the Defendant/Applicant’s Application dated 08th June 2026 under Certificate of Urgency expressed to be brought under Sections 3, 3A, 1A, 1B and 63 (e) of the Civil Procedure Act, Order 9 Rule 9, Order 45 Rule 1 – 4 and 10, and Order 51 Rule 1 of the Civil Procedure Rules seeking the following orders: - 2. *Spent* 3. *Spent* 4. *Spent* 5. *That this Honourable Court be pleased to review, vary, discharge, and/or set aside the exparte judgment entered on 06th day of February 2026 and all consequential orders* 6. *That consequent to the grant of prayer 3 (sic) herein the Defendant be granted leave to file Memorandum of Appearance and Statement of Defence in order to defend the suit* 7. *The cost of the Application be provided for* 8. The instant Application was premised on the grounds on the face of it, which grounds were reiterated in the Supporting Affidavit sworn on 08th June 2026 by the Defendant/Applicant. 9. The fulcrum of the instant Application is that the Defendant/Applicant was neither served with the Summons to Enter Appearance nor the Plaint herein as alleged in the Affidavit of Service sworn on 27th June 2025 by Moses Kuloba Keya since before the institution of this suit and its pendency, she has at all times worked and resided in Kisii County. The Defendant/Applicant further averred that she only came to know about the existence of this suit on 05th June 2026 when her father-in-law’s property was reportedly proclaimed by an auctioneer in execution of the decree herein. She thus termed the exparte judgment on record and the resultant orders irregular and unlawful, which ought to be set aside. 10. She also denied being served with the notice of entry of judgment. She further denied instructing the firm of KK & Associates Law, which filed a Notice of Appointment dated 03rd March 2026, to act on her behalf in this matter 11. The Defendant/Applicant added that she has a valid defence against the Plaintiff’s claim. 12. The Plaintiff/Respondent opposed the instant Application through a Replying Service sworn by the Plaintiff/Respondent on 17th June 2026. He averred that he accompanied the process server, one Moses Kuloba Keya, on 21st June 2025 to the Defendant/Applicant’s home in Buyofu when the Defendant/Applicant was duly served with the Summons To Enter Appearance and the Plaint herein. 13. He further averred that the Defendant/Applicant had not denied the description of her home set out in the Affidavit of Service sworn by Moses Kuloba Keya on 27th June 2025. Further, he averred that the fact that the Defendant/Applicant had not made an application to summon the process server for cross-examination was proof that she had been properly served with the Summons To Enter Appearance and the Plaint. 14. He also stated that the Defendant/Applicant was properly served with the Notice of Entry of Judgment in Buyofu on 24th February 2026 as evidenced by the Affidavit of Service on record sworn by Moses Kuloba Keya on 24th February 2026, which prompted the filing of the Notice of Appointment dated 03rd March 2026 by the firm of KK & Associates Law on behalf of the Defendant/Applicant. 15. The Defendant/Applicant added that Article 50 of the Constitution could not be invoked in the Defendant/Applicant’s favour given that the Defendant/Applicant had deliberately refused to defend this suit despite having been duly served with the Summons To Enter Appearance and the Plaint. 16. It is against this backdrop that the Plaintiff/Respondent urged this court not to grant the orders sought lest he suffers great prejudice given the serious injuries he sustained as a result of the accident. 17. In response, the Defendant/Applicant filed a Supplementary Affidavit sworn by herself on 07th July 2026 reiterating the contents of her Supporting Affidavit herein. She conceded that the accident herein occurred but involved Joseph Wafula, whom she took to hospital for medical attention and paid Kshs. 2,000/= for motorcycle repairs as evidenced by the agreement on record marked MN0-001. 18. The instant Application was canvassed by way of written submissions. The Plaintiff/Respondent and the Defendant/Applicant filed their respective written submissions which reinforced their foregoing positions with legal arguments backed by lists of authorities. In the circumstances, it will not serve any purpose to set out a summary of the said written submissions in this ruling. **ANALYSIS & DETERMINATION** 1. The Defendant/Applicant seeks to set aside the Interlocutory Judgment herein against him as well as the ex parte proceedings herein. 2. Where judgment in default of appearance or defence or for failure to serve has been entered under the various provisions of Order 10 of the Civil Procedure Rules, 2010 (the Rules), Rule 11 of that Order gives the court a wide discretion to set aside or vary such judgment and any consequential decree or order “upon such terms as are just”. 3. In ***Shah –vs– Mbogo & Another [1967] EA 116,*** it was held, *inter alia*, that the Court’s discretion to set aside an *ex parte* judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. 4. In ***Chemolo & Another –vs– Kubende [1986] KLR 492,***the Court of Appeal pronounced itself thus regarding this subject - *“…..The concern of the Court is to do justice to the parties and the court would not impose conditions on itself to fetter the discretion. However, where a regular judgment has been entered, the court will not usually set it aside unless it is satisfied that there are triable issues which raise a prima facie defence which should go to trial….”(Emphasis added)* 1. Another germane issue to be considered by a court when faced with an Application like the instant Application is whether the ex parte judgment sought to be set aside is a regular or an irregular one. This can be gleaned from **Mwala v Kenya Bureau of Standards EALR [2001] 1 EA 148,** where the court stated: *“….[T]o all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte judgment. Where the judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justiciae for a court should never countenance an irregular judgment on its record.”* 1. Guided by the authorities above and having considered the pleadings, the submissions, and the authorities relied on by the parties herein, the issues that commend to this court for determination are: 2. *Whether the exparte judgment was regularly entered* 3. *Whether the applicant has a defence on the merits that raises triable issues* 4. *Whether the instant Application has been filed without undue delay* 5. *Whether any prejudice will be occasioned to the Plaintiff if the orders sought are not granted* **Whether the ex parte judgment was regularly entered** 1. The Defendant/Applicant contended that she was not served with the Plaint, Summons to Enter Appearance, and the Notice of Entry of Judgment as required by law. 2. The Plaintiff/Respondent, on the other hand, took the position that the Defendant/Applicant was duly served with the Summons To Enter Appearance, Plaint, and all the relevant notices. 3. This court has had the benefit of going through the Affidavits of Service sworn by Moses Kuloba Keya on 27th June 2025 and 24th February 2026. The said Affidavits of Service detail how service of the Plaint and Summons to Enter Appearance and Notice of Entry of Judgment herein was effected upon the Defendant/Applicant in person in Buyofu. 4. It is noteworthy that service of Notice of Entry of Judgment upon the Defendant/Applicant on 24th February 2026 in Buyofu prompted the filing of the Notice of Appointment dated 03rd March 2026 by the firm of KK & Associates Law on behalf of the Defendant/Applicant. Whereas the Defendant/Applicant denied instructing the firm of KK & Associates Law to act for her in this matter, it cannot be a coincidence that a week after a Notice of Entry of Judgment was served upon her, the firm of KK & Associates Law, whom the Defendant/Applicant claims to be a stranger to, came on record for her. 5. The foregoing proves on a balance of probabilities that the Defendant/Applicant instructed the firm of KK & Associates Law to act for her in this matter upon being served with the Notice of Entry of Judgment on 24th February 2026 in Buyofu. This finding dislodges the Defendant/Applicant’s averment that she does not ordinarily reside in Buyofu. 6. Be that as it may, the weight to be attached to the contents of an Affidavit of Service can be gleaned fromthe eminent work by ***Chitaley and Annaji Rao; The Code of Civil Procedure* Volume II page 1670**where it is stated that: *There is a presumption of service as stated in the process server's report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross-examination given to those who deny the service. [Underlining mine for emphasis]* 1. In **Shadrack Arap Baiywo v Bodi Bach [1987]** **eKLR**, the Court of Appeal held as follows:- *There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.”(Emphasis added)* 1. The authorities cited above show that the contents of an Affidavit of Service are deemed to be true unless the party disputing the contents of an Affidavit of Service leads evidence to prove otherwise. A party disputing the contents of an Affidavit can do so by cross-examining the process server or leading any other credible evidence to controvert the contents of an impeached Affidavit of Service. 2. The Defendant/Applicant simply denied having been served with the Summons to Enter Appearance, the Plaint, and the Notice of Entry of judgment herein. 3. The failure by the Defendant/Applicant to summon the Plaintiff’s process server for cross-examination to test the veracity of a process server’s averments in the Affidavits of Service on record, or to lead credible evidence to controvert the contents of the said Affidavits of Service, rendered the averments in the said Affidavits of Service to be true. 4. Given the above, this court holds and finds that the Defendant/Applicant was properly served with the Summons to Enter Appearance, the Plaint and the Notice of Entry of judgment in this matter. 5. Therefore, for the reasons above, the interlocutory judgment and the ex parte default judgment herein were regularly entered. **Whether the applicant has a defence on the merits that raises triable issues** 1. This court has had the benefit of perusing the Defendant/Applicant’s Statement of Defence herein. That Statement of Defence raises legal and factual issues that include whether the Plaintiff/Respondent was involved in a road traffic accident on 21st February 2025 with the Defendant’s motor vehicle registration number KDK 143 S, and whether the Plaintiff/Respondent negligently contributed to the occurrence of the accident herein 2. This court respectfully thinks that the issues above are triable issues, not necessarily ones that must succeed, but *bona fide* trial issues between the parties, nonetheless, that warrant hearing and determination on merit. **Whether the instant Application has been filed without undue delay** 1. Judgment in this matter was delivered on 30th April 2026. The instant Application was filed on 08th June 2026. It is this court’s considered view that a period of slightly over one month cannot be deemed to amount to undue delay. **Whether any prejudice will be occasioned to the Plaintiff if the orders sought are granted** 1. It is not lost to this court that the Plaintiff/Respondent needs the judgment/decretal sum to take care of his medical needs and other needs that arose from the accident herein. Granting the orders sought by the Defendant/Applicant will delay the Plaintiff/Respondent from realizing the fruits of his judgment. It will also cause the Plaintiff/Respondent to incur further costs in attending court to testify. 2. This court is of the considered view that any prejudice occasioned to the Plaintiff/Respondent by granting the orders sought herein can be remedied by fast-tracking the hearing and determination of this case, as well as an order for payment of thrown-away costs. 3. On the other hand, if the orders sought by the Defendant/Applicant are not granted, the Plaintiff/Respondent will proceed with the execution process against the Defendant/Applicant before the Defendant/Applicant’s defence to this suit is heard on its merits. 4. Given the above, the circumstances of this case militate against declining to grant the orders sought by the Defendant/Applicant. **DETERMINATION** 1. Accordingly, for the reasons set out above, this Court makes the following orders: 2. *The ex parte judgment entered herein and all consequential orders thereby arising, including the entire execution process, are set aside.* 3. *The Defendant/Applicant is granted leave to file its defense out of time, and serve the same upon the Plaintiff/Respondent within fourteen (14) days of today* 4. *The Plaintiff/Respondent to file and serve their Reply to the Statement of Defence (if need be) within fourteen (14) days upon service.* 5. *The Parties herein to comply with Order 11 of the Civil Procedure Rules within 30 days from the date hereof.* 6. *The Defendant/Applicant shall, however, pay the Plaintiff/Respondent thrown away costs of KShs.20,000/= within 30 days from the date hereof, in default, the orders above will lapse without further reference to this court* 7. *Costs of this Application will abide the outcome of this suit* 8. It is so ordered. **Read, signed and delivered in open court at Bungoma this 23rd day of July 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Bwonchiri for the Plaintiff/Respondent Mr. Kisiang’ani for the Defendant/Applicant C/A: Rioba