Omondi t/a Jetal Kenya Ltd v Momentum Credit Ltd & another (Civil Case E332 of 2026) [2026] KEMC 153 (KLR)
The bottom line
#A Mombasa court set aside orders that let an auctioneer seize tenants' goods with police help, because the tenants never got a fair chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants were served with the application dated 2nd December 2025
Service by affixing on gates was exceptional and undertaken without an application for substituted service; nevertheless, the evidence (BPRT proceedings and a tenant's affidavit admitting service of proclamation notices) showed the tenants were not complete strangers to the distress proceedings.
The affidavit of service showed the process server found the premises locked and affixed pleadings on gates without any application for substituted service. However, the BPRT order of 25th August 2025 in Daniel Nyamai & 10 Others showed tenants challenged removal of proclaimed goods, and Mannasses Nderitu's affidavit admitted service of a proclamation notice and payment of arrears while disowning the supporting affidavit and alleging forgery. The claim that all applicants were strangers was therefore inaccurate.
Whether the orders of 18th December 2025 should be set aside
The orders were set aside pending inter partes hearing. Though tenants had some awareness of the distress, not all affected tenants had a meaningful opportunity to participate in the application; fairness and Article 50 required they be heard.
The set-aside power is discretionary, aimed at preventing injustice and ensuring disputes are determined on merit. Police-assisted entry and distress against premises occupied by approximately seventy tenants had serious consequences for property and commercial interests. Despite evidence of arrears records, proclamations, BPRT proceedings, obstruction allegations and at least one admission of service, the court was not satisfied all affected tenants were afforded a meaningful opportunity to participate. Status quo was preserved and the matter opened for inter partes determination rather than permanently nullified.
Legal principles established
#- The power to set aside ex parte orders is discretionary and exists to prevent injustice or hardship arising from accident, inadvertence or excusable mistake, and is intended to ensure disputes are determined on merit.
- Service by affixing is an exceptional mode of service and ordinarily requires demonstration that personal service could not reasonably be effected.
Court orders
#- 1.The Notice of Motion dated 27th March 2026 was partially allowed.
- 2.The orders issued on 18th December 2025 authorizing police supervision and assistance shall remain set aside pending the hearing and determination of the application dated 27th March 2026.
- 3.The Applicants to file and serve any further affidavits and documents within fourteen (14) days.
- 4.The Respondent/Auctioneer at liberty to file any supplementary affidavit within fourteen (14) days of service.
- 5.The parties to thereafter file written submissions on the application.
- 6.Pending determination of the application, the Auctioneer shall not remove, sell or otherwise dispose of any proclaimed goods pursuant to the orders of 18th December 2025.
- 7.Nothing in the ruling to be construed as determining whether rent arrears are due, whether the proclamations were lawful, whether distress for rent was properly levied, or whether the tenants have fully settled their obligations; those issues to be determined inter partes.
- 8.Costs of the application shall abide the outcome of the main application.
- Jurisdiction invoked
- Inherent and discretionary jurisdiction of the Magistrate's Court to set aside orders; Article 50 of the Constitution (right to be heard)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omondi t/a Jetal Kenya Ltd v Momentum Credit Ltd & another (Civil Case E332 of 2026) [2026] KEMC 153 (KLR)", Case Analysis (2026). Civil Case No E332 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/153/eng@2026-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.