Mwiva (Suing as the Legal Representative and Administrator of the Estate of Charles Kyengo Kyungu - Deceased) v Musyoka (Civil Case E020 of 2020) [2026] KEMC 14 (KLR)
The bottom line
#A Kenyan court refused to overturn a default judgment because the defendant ignored court summons and her insurer's affidavit could not prove non-service.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment should be set aside under Order 10 rule 11 of the Civil Procedure Rules
The application was dismissed; the default judgment was maintained because the defendant was duly served, offered no explanation for default, and had unclean hands.
Affidavits of service showed the defendant was served with summons, plaint and mention notices and that her insurer was served with notice of institution of suit; neither disputed service nor explained the default. The supporting affidavit was sworn by an insurance company legal officer, a stranger to the suit, who could not prove non-service of his own knowledge, and parts of it were struck out. The draft defence was a copy of the defence in the declaratory suit and raised no triable issues. The court found the application was an afterthought meant to delay execution of the decree.
The competence and weight of the supporting affidavit sworn by the insurer's legal officer
The deponent, a stranger to the suit, could not prove the facts of service or non-service of his own knowledge; paragraphs 4 and 5 of the supporting affidavit were struck out.
Order 19 rule 3(1) confines affidavits to facts the deponent can prove of his own knowledge, with statements of information and belief permitted in interlocutory proceedings only if sources and grounds are shown. The insurance company is not a party to the suit, so its purported authority was of no consequence, and no authority from the defendant was shown. The deponent did not disclose how he knew the defendant was never served. Relying on Gerphas Alphonse Odhiambo v Felix Adiego and Kenya Horticultural Exporters v Pape, such an affidavit may be struck out or given little weight.
Whether the draft defence raised triable issues
It did not; the draft defence was actually a copy of the defence in the declaratory suit and did not answer the claim herein.
The court perused the draft defence and found it did not answer the claim in this suit. An applicant seeking to defend a suit must show a defence that raises triable issues; a document copied from proceedings in another suit cannot do so. The court concluded the application was heedlessly prepared and the applicant was gambling with the course of justice.
Legal principles established
#- The power to set aside a default judgment is discretionary and to be exercised to do justice, not to assist an indolent or evasive party
- Where there is an affidavit of service and no affidavit by the defendant disputing service (and no cross-examination of the process server), the court will find service was duly effected
- To deny a litigant a hearing should be the last resort of a court, but a defaulting applicant must offer a full, honest and acceptable explanation for the default
Court orders
#- 1.The application dated 20/5/2025 is hereby Dismissed
- 2.The Judgment in default entered herein is maintained
- 3.The defendant is condemned to pay costs of the application
- Jurisdiction invoked
- Order 22 rule 22 and sections 1A, 1B and 3A of the Civil Procedure Act (application to set aside ex parte judgment under Order 10 rule 11 of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwiva (Suing as the Legal Representative and Administrator of the Estate of Charles Kyengo Kyungu - Deceased) v Musyoka (Civil Case E020 of 2020) [2026] KEMC 14 (KLR)", Case Analysis (2026). Not stated in the judgment (main suit number omitted; the application before the court is dated 20/5/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/14/eng@2026-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.