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MagistrateDismissed· [2026] KEMC 625 (KLR)

Barasa & another (Suing as Widow and Mother Respectively and Legal Representatives of the Estate of Doreen Nangila Wafula) v Getange & another (Civil Case 529 of 2024) [2026] KEMC 625 (KLR)

Magistrates' Court (Senior Resident Magistrate), Bungoma
23 July 2026
3,057 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court refused to undo a default judgment against a defendant who ignored court papers and applied too late with a weak defence.

What this practically means

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Executive summary

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The 1st Defendant moved the court by Notice of Motion dated 05th June 2026 seeking to set aside an interlocutory judgment entered against him, together with the judgment of 11th November 2025, the decree, warrants of attachment and all consequential orders, and for leave to defend the suit through a Draft Defence. He contended he was never served with summons or the plaint, that substituted service was improper since personal service had not been shown to have failed, and that he had a meritorious defence raising triable issues. The Plaintiffs opposed, maintaining that service was effected through the Defendants' agent at their Luanda business offices on 17th December 2024 (prompting the 2nd Defendant to enter appearance and defend), that substituted service was subsequently effected by advertisement in the Daily Nation of 14th April 2025, and that the application was brought after inordinate delay by an indolent defendant intent on frustrating execution. Framing four issues - regularity of the ex parte judgment, existence of triable issues, delay, and prejudice - the court found that service through the agent was proper under Order 5 Rule 10(1) and that the Defendants were business partners, so the 1st Defendant could not plausibly claim ignorance. The Draft Defence pleaded contributory negligence by the caretaker of a minor, yet the deceased was not a minor, so it raised no triable issues. The application was also filed over a year after judgment without explanation. The court further declined to set aside the judgment because doing so would render the 2nd Defendant's pending appeal, Bungoma High Court Civil Appeal No. E050 of 2024, moot. The Notice of Motion was dismissed with costs of Kshs. 10,000/= to the Plaintiffs/Respondents.

Key legal issues

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01

Regularity of the interlocutory judgment

Holding

The judgment was regularly entered because the 1st Defendant was properly served through his agent at the Defendants' place of business, and the subsequent substituted service reinforced notice

Reasoning

The process server's affidavit showed summons and plaint were served on the Defendants through their agent Brenda at their Luanda business offices, which prompted the 2nd Defendant to enter appearance and file a defence. Under Order 5 Rule 10(1), service at a place of business through an agent is proper. The court inferred from the police abstract and vehicle records that the Defendants were business partners, so the 1st Defendant cannot plausibly claim ignorance of the suit. He simply declined to enter appearance until execution began.

p. 6
02

Whether a triable defence exists

Holding

The Draft Defence raises no triable issues

Reasoning

The Draft Defence pleads contributory negligence against a minor, but the deceased in this suit was not a minor. The defence therefore does not respond to the actual claim and cannot go to trial on the merits.

p. 6
03

Undue delay in filing the application

Holding

The application was filed after inordinate, unexplained delay

Reasoning

Interlocutory judgment was entered on 06th May 2025 and final judgment on 11th November 2025, yet the application was filed on 05th June 2026 with no plausible explanation for the delay of over a year. The court held that the applicant slept on his right to be heard and that the right must slip away from him.

p. 6
04

Prejudice to the Plaintiffs and the pending appeal

Holding

Granting the orders would prejudice the Plaintiffs and render the 2nd Defendant's pending appeal moot

Reasoning

The Plaintiffs have waited since 11th November 2025 to enjoy the fruits of their judgment, and setting aside the judgment would delay them and cause further costs. Additionally, the 2nd Defendant appealed against the judgment on 24th April 2026 in Bungoma High Court Civil Appeal No. E050 of 2024; setting aside the judgment would render that pending appeal moot, a legal absurdity the court declined to create.

p. 7

Legal principles established

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  • Substituted service is only permitted where efforts to serve a party personally fail
  • Service of summons on a defendant at their place of business through their agent is proper service under Order 5 Rule 10(1) of the Civil Procedure Rules
  • An irregular ex parte judgment should be set aside ex debito justitiae, but a regular one is set aside only in the court's discretion where triable issues exist

Court orders

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  1. 1.The 1st Defendant/Applicant's Notice of Motion dated 05th June 2026 is dismissed
  2. 2.Costs of Kshs. 10,000/= awarded to the Plaintiffs/Respondents
Jurisdiction invoked
Sections 1B and 3A of the Civil Procedure Act; Order 1 Rule 10, Order 10 Rule 11, Order 21 Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Barasa & another (Suing as Widow and Mother Respectively and Legal Representatives of the Estate of Doreen Nangila Wafula) v Getange & another (Civil Case 529 of 2024) [2026] KEMC 625 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/625/eng@2026-07-23

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