JNM (Suing as Father and Next Friend of LWN) v Tereza & another (Civil Suit 126 of 2015) [2026] KEMC 99 (KLR)
The bottom line
#A Nakuru court voided a default judgment because handing summons to the driver isn't valid service on the vehicle owner in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Validity of service on the 2nd defendant
Service on the 2nd defendant through the 1st defendant (the driver) was not proper personal service; the ex parte proceedings were irregular.
The affidavit of service showed service was effected through the 1st defendant, alleged to be the driver, who promised to forward the summons. Each independent defendant must be served individually in person or through an authorized agent. Under Order 5 rule 13, unacknowledged service on the driver on behalf of the owner renders service legally defective, so the ex parte proceedings were irregular and had to be set aside ex debito justitiae.
Timeliness of the application to set aside
The application was filed promptly upon the applicant learning of the proceedings, so there was no inordinate delay.
The 2nd defendant became aware of the suit on 10/11/2025 when served with execution documents (proclamation of attachment and warrants) via WhatsApp. She immediately instructed counsel who discovered the ex parte judgment. Since the application followed promptly upon that discovery, it could not be said to have been filed after prolonged, inordinate or unreasonable delay.
Legal principles established
#- Service of summons on a co-defendant driver does not constitute valid service on the vehicle owner unless the driver is the owner's authorized/recognized agent.
- A court has unfettered discretion to set aside default judgment to avoid injustice, and leans toward deciding cases on merits.
Court orders
#- 1.The ex parte proceedings in the matter set aside
- 2.The 2nd defendant granted unconditional leave to file her statement of defence out of time
- 3.Costs of the application awarded to the 2nd defendant/applicant
- 4.The 2nd defendant to file and serve her defence and compliance documents within 21 days; parties to proceed and close pleadings and PTD on 17/09/2026
- Jurisdiction invoked
- Inherent discretion to set aside ex parte proceedings and default judgment under Order 10 rule 11 of the Civil Procedure Rules; Article 159 Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JNM (Suing as Father and Next Friend of LWN) v Tereza & another (Civil Suit 126 of 2015) [2026] KEMC 99 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/99/eng@2026-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.