Munga v Munyi (Civil Case E003 of 2024) [2026] KEMC 29 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defendant's inaction in following up the matter disentitled him from setting aside the default judgment
The applicant's failure to follow up constituted indolence, but this alone did not defeat the application once a triable defence was disclosed
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.
Whether the draft defence raises triable issues
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
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.
Legal principles established
#- 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
#- 1.Set aside the interlocutory judgment given on 25/06/2024 and all consequential orders and proceedings thereto
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.