Wanka v Okinyi (Civil Suit E282 of 2025) [2026] KEMC 683 (KLR)
The bottom line
#A Bungoma court set aside a default judgment because the defendant showed a real defence—but only after she paid thrown-away costs.
What this practically means
#Executive summary
#Key legal issues
#Regularity of the ex parte judgment
The judgment was regularly entered; service of summons, plaint and notice of entry of judgment was proved by uncontroverted affidavits of service.
The affidavits of service sworn by the process server detailed personal service in Buyofu. The applicant merely denied service without summoning the process server for cross-examination or leading other credible evidence. The court also found it significant that a firm of advocates came on record for the applicant a week after notice of entry of judgment was served, which dislodged her claim of non-residence in Buyofu.
Whether the applicant has a defence raising triable issues
The draft defence raises bona fide triable issues on liability and contributory negligence warranting trial.
The proposed statement of defence raised legal and factual questions, including whether the plaintiff was involved in the accident with the defendant's motor vehicle KDK 143 S and whether the plaintiff negligently contributed to the accident. The court held these need not succeed but are bona fide issues deserving of trial on the merits.
Undue delay in bringing the application
A filing period of slightly over one month after judgment was not undue delay.
Judgment was delivered on 30th April 2026 and the application filed on 8th June 2026. The court considered the interval of slightly over one month insufficient to constitute undue delay, one of the relevant considerations for setting aside a regular judgment.
Prejudice to the plaintiff if the orders are granted
Any prejudice to the plaintiff can be remedied by fast-tracking the hearing and an award of thrown-away costs.
The court acknowledged the plaintiff needs the decretal sum for medical needs and that setting aside would delay execution and increase costs. However, it weighed against that the injustice of execution proceeding before the defence is heard, and held the prejudice curable by expedited hearing and thrown-away costs.
Legal principles established
#- Where an ex parte judgment is regular, the court's discretion to set it aside is exercised upon such terms as are just; where it is irregular, it is set aside ex debito justiciae.
- There is a presumption of service from the process server's affidavit; the party disputing it bears the burden and should cross-examine the process server or lead credible contrary evidence.
Court orders
#- 1.The ex parte judgment entered herein and all consequential orders thereby arising, including the entire execution process, are set aside
- 2.The Defendant/Applicant is granted leave to file its defense out of time, and serve the same upon the Plaintiff/Respondent within fourteen (14) days of today
- 3.The Plaintiff/Respondent to file and serve their Reply to the Statement of Defence (if need be) within fourteen (14) days upon service
- 4.The Parties herein to comply with Order 11 of the Civil Procedure Rules within 30 days from the date hereof
- 5.The Defendant/Applicant shall pay the Plaintiff/Respondent thrown away costs of KShs.20,000/= within 30 days from the date hereof, in default, the orders above will lapse without further reference to this court
- 6.Costs of this Application will abide the outcome of this suit
- Jurisdiction invoked
- Sections 3, 3A, 1A, 1B and 63(e) of the Civil Procedure Act; Order 10 Rule 11 and Order 45 Rules 1–4 and 10 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanka v Okinyi (Civil Suit E282 of 2025) [2026] KEMC 683 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/683/eng@2026-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.