Nganga v Administrators of the Estate of Kakai Shura Tatek (Kashaambi Kakai, Sisita, David Toyianka Kakai & Denilson Malit Kakai (Environment and Land Case E093 of 2025) [2026] KEELC 24 (KLR)
The bottom line
#A Kenyan High Court refused default judgment because serving court papers on a law firm does not count as serving the defendants themselves unless the firm was expressly authorised to accept service.
What this practically means
#Executive summary
#Key legal issues
#Whether service upon the Defendants' law firm was proper service
Service on the law firm was not proper because the deponent of the affidavit of service did not state that the firm had instructions to accept service, and the mere fact that the firm acts for the Defendants in a succession cause does not authorise it to receive summons in this suit.
Under Order 5 of the Civil Procedure Rules, service of summons should ideally be personal unless served on an agent empowered to accept service. Order 5 rule 8(2) permits service on an advocate only with explicit instructions to accept service. The affidavit of service did not explain why the firm was served or establish such instructions, and counsel from the firm was not forthright that they had instructions. Representation in a separate succession cause confers no authority to accept service in this suit.
The correct procedure for judgment where a Defendant does not appear and the claim is unliquidated
Interlocutory judgment by request is unavailable for unliquidated claims; the plaintiff must set the suit down for formal proof under Order 10 rule 9, after proof of proper service.
The court noted the Plaintiff's claim is not a liquidated claim, so a request for judgment does not lie. Order 10 rule 9 requires the plaintiff to set down the suit for hearing in suits where the served party does not appear. Before doing so, the court must be satisfied that proper service was effected on all Defendants - a threshold not met here.
Legal principles established
#- Service of summons on an advocate is proper only where it is demonstrated that the advocate has explicit instructions to accept service on behalf of the defendant.
- A request for judgment in default of appearance applies only to liquidated claims; for unliquidated claims the plaintiff must set the suit down for hearing under Order 10 rule 9.
Court orders
#- 1.The court directs personal service of the summons to enter appearance issued in this case upon the Defendants
- Jurisdiction invoked
- Original civil jurisdiction under the Civil Procedure Act and Civil Procedure Rules (Order 5 and Order 10)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nganga v Administrators of the Estate of Kakai Shura Tatek (Kashaambi Kakai, Sisita, David Toyianka Kakai & Denilson Malit Kakai (Environment and Land Case E093 of 2025) [2026] KEELC 24 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/24/eng@2026-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.