Co-operative Bank of Kenya v Gitonga (Civil Suit 216 of 2017) [2026] KEMC 31 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit abated for want of valid summons
The suit had not abated because summons were duly reissued within the permissible period
Order 5 Rule 3(5) requires summons to be prepared and filed with the plaint. Where summons are not served within 12 months the suit abates, but validity can be extended where summons are issued but not served within 12 months of first issue. Here summons issued on 13th March 2017 were reissued on 3rd April 2019 and 2nd September 2020, showing the suit remained alive at judgment.
Whether the ex parte judgment was regularly entered
The judgment entered in default on 3rd September 2021 was regular, the claim being for a liquidated demand and service having been effected
Order 10 rule 4 permits judgment on a liquidated demand where the defendant fails to appear. The plaintiff exhibited an affidavit of service by a process server evidencing personal service at the Defendant's place of work, plus acknowledgment and an instalment proposal. The Defendant never cross-examined the process server or rebutted the evidence, so the plaintiff's evidence remained unchallenged.
Whether the Defendant demonstrated sufficient cause and triable issues to warrant setting aside the judgment
The Defendant failed: the draft defence contained general denials and unsubstantiated in duplum assertions, and the four-year delay was unexplained
The draft defence raised general denials, alleged full repayment and invoked Section 44A of the Banking Act (in duplum) without particulars or computation. A triable issue must be bona fide and supported by credible material. The delay from judgment in 2021 to the application in 2025 was inordinate and unexplained, and a decree holder is entitled to the fruits of a lawful judgment.
Legal principles established
#- A party challenging service must discharge the burden of disproving it; mere denial does not displace the presumption of proper service arising from a duly sworn affidavit of service
- A triable issue must be bona fide and supported by credible material, not fanciful or shadowy denials raised to gain time
- An unexplained and inordinate delay in moving to set aside a judgment militates against the favourable exercise of discretion
Court orders
#- 1.The Defendant's notice of motion dated 24th June 2025 is dismissed
- 2.Costs of the application to the Plaintiff
- Jurisdiction invoked
- Order 51 Rule 1 of the Civil Procedure Rules, Sections 22, 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Co-operative Bank of Kenya v Gitonga (Civil Suit 216 of 2017) [2026] KEMC 31 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/31/eng@2026-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.