Benjamin Mwanzia Wambua (Suing as the Legal Representative of Mukui Wambua Maingi) v Stephen Kimeu Kimanga [2019] KEELC 2400 (KLR)
The bottom line
#A Kenyan court refused to undo a default judgment because the defendant delayed, offered no draft defence, and failed to prove he was never served.
What this practically means
#Executive summary
#Key legal issues
#Whether summons were properly served on the Defendant/Applicant
Service was properly effected; the defendant did not deny signing the summons nor apply to examine the process server, so he failed to discharge the burden of showing the return of service was incorrect
The presumption of service arising from the process server's affidavit stands unless rebutted. The defendant did not dispute the signature said to be his on the summons and did not invoke Order 5 Rule 16 to examine the serving officer on oath. He therefore failed to show the return was incorrect, and the service was upheld as regular.
Whether there was inordinate delay in bringing the application
The delay was inordinate and unexplained; the illness deponed to was unsupported by any document
Although the defendant deposed that illness prevented him from filing the application, he attached no supporting documents. He admitted being in court when the matter was heard, sought and obtained a chance to file the application, yet failed to do so. The court found the delay unexplained and inordinate, weighing against setting aside the judgment.
Whether the defence raises triable issues
The court could not determine whether triable issues exist because no draft defence was annexed to the application
An applicant seeking leave to defend must demonstrate a plausible defence. Since no draft defence accompanied the application, the court had no material on which to assess whether any triable issues existed. This defect, together with the inordinate delay and the failure to rebut service, made the application unmeritorious.
Whether justice requires setting aside the judgment notwithstanding the defendant's conduct
The defendant's conduct did not merit the court's discretion; the application was a ploy to deny the plaintiff the fruits of his judgment
While justice demands that parties not be shut out from the seat of justice, the court found the defendant's overall conduct — failing to act on granted leave, delaying without explanation, and disputing service without evidence — indicated an intent to obstruct the plaintiff from executing the judgment. The discretion to set aside was therefore not exercised in his favour.
Legal principles established
#- A triable issue is an issue which raises a prima facie defence which should go to trial for adjudication
- There is a presumption of service arising from the process server's report, and the burden lies on the party questioning it to show that the return is incorrect
- A party seeking to set aside default judgment must annex a draft defence to demonstrate triable issues
Court orders
#- 1.The Defendant/Applicant's Notice of Motion dated 12th October, 2018 seeking to set aside the default judgment is dismissed
- 2.Costs of the application to the Plaintiff/Respondent
- Jurisdiction invoked
- Order 10 Rule 11, Order 51 Rule 1 of the Civil Procedure Rules 2010 and Sections 1A, 1B & 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Mwanzia Wambua (Suing as the Legal Representative of Mukui Wambua Maingi) v Stephen Kimeu Kimanga [2019] KEELC 2400 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2400/eng@2019-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.