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MagistratePartially AllowedNot stated in the judgment· [2026] KEMC 29 (KLR)

Munga v Munyi (Civil Case E003 of 2024) [2026] KEMC 29 (KLR)

Chief Magistrate's Court at Nakuru
19 February 2026
1,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Nakuru court gave a defendant who ignored his case a second chance to defend it, but made him pay all costs first within 60 days.

What this practically means

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Executive summary

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The defendant, Samuel Warihui Munyi, applied to review and set aside an interlocutory judgment entered against him and for leave to file his statement of defence out of time, with costs of the application to be in the cause. The plaintiff, Peter Kinyanjui Munga, opposed through a replying affidavit sworn by his counsel. The court set out the settled principles: it has a wide, unfettered discretion to set aside ex parte judgments to avoid injustice, leaning towards deciding cases on merits rather than procedural technicalities, guided by Article 159 of the Constitution and Order 10 rule 11 of the Civil Procedure Rules. Relying on James Kanyiita Nderitu v Marios Philotas Ghikas, J.G. Builder v Plan International, Multiple Hauliers v Enock Bilindi Musundi, CMC Holdings v James Mumo Nzioka and Tree Shade Motors v D T Dobie, the court found the applicant indolent for failing to follow up the matter after forwarding it to his insurer, Trident Insurance Company Limited. Nonetheless, examining the annexed draft defence as required, the court found a core defence that the accident was wholly or substantially contributed to by the plaintiff, supported by at least 8 particulars of negligence - not a mere general denial. On that ground alone the defendant was allowed to defend the suit, but as a consequence of his negligence was ordered to refund the costs the plaintiff had incurred. The court set aside the interlocutory judgment and consequential proceedings, granted conditional leave to file the defence within 60 days upon payment of assessed costs, with reinstatement of the judgment and liberty to execute upon default.

Key legal issues

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01

Whether the defendant's inaction in following up the matter disentitled him from setting aside the default judgment

Holding

The applicant's failure to follow up constituted indolence, but this alone did not defeat the application once a triable defence was disclosed

Reasoning

The court accepted the plaintiff's submission that the applicant forwarded pleadings to his insurer and made no efforts to follow up the case, which under J.G. Builder and Multiple Hauliers amounts to indolence. However, the court nonetheless proceeded to examine the draft defence, and a meritorious triable defence justified setting aside, with a costs sanction as a consequence of the defendant's negligence.

p. 2
02

Whether the draft defence raises triable issues

Holding

The draft defence raised a core defence of the plaintiff's contributory negligence with at least 8 particulars of negligence, which is not a mere general denial

Reasoning

Applying CMC Holdings v James Mumo Nzioka and Tree Shade Motors v D T Dobie, the court was obliged to consider the annexed draft defence. It found the defence that the accident was wholly or substantially contributed to by the plaintiff, supported by 8 particulars of negligence, raised triable issues. On this ground alone the applicant was allowed to defend the suit, subject to refunding costs incurred.

p. 3

Legal principles established

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  • A court has a wide, unfettered discretion to set aside default judgment, exercised to avoid injustice, and leans towards deciding cases on merits rather than procedural technicalities
  • In an application to set aside ex parte judgment the court must consider both the reason for default and whether a triable defence exists
  • A litigant has a personal duty to pursue and follow up the case; blame of an advocate alone is insufficient

Court orders

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  1. 1.Set aside the interlocutory judgment given on 25/06/2024 and all consequential orders and proceedings thereto
  2. 2.Grant the Defendant/Applicant leave to file his Statement of Defence as annexed, upon payment of costs so far incurred by the plaintiff in prosecuting the suit, as already assessed, and the costs of defending the application, in full, within 60 days
  3. 3.In default of compliance, the interlocutory judgment and ex parte proceedings shall be reinstated and the plaintiff at liberty to proceed with execution
Jurisdiction invoked
Inherent discretionary jurisdiction to set aside ex parte/interlocutory judgment under Order 10 rule 11 of the Civil Procedure Rules, guided by Article 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Munga v Munyi (Civil Case E003 of 2024) [2026] KEMC 29 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/29/eng@2026-02-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.