Bwana v Al-Kamar Trading Company Limited (Civil Case E757 of 2025) [2026] KEMC 817 (KLR)
The bottom line
#A Mombasa court set aside a KShs. 782,974 default judgment because the company disputed being served, but ordered it to deposit KShs. 400,000 security to keep the case alive.
What this practically means
#Executive summary
#Key legal issues
#Validity of service on a corporation
The affidavit of service was detailed and bore an apparently authentic company stamp, but the Defendant's specific challenge to the stamp's authenticity and the absence of evidence that the unnamed recipient was a director, secretary or principal officer under Order 5 Rule 3 left the question of valid service unresolved
The court held that service on a corporation must be effected on the secretary, director or principal officer under Order 5 Rule 3. Although the process server's affidavit was detailed and the stamped documents significant, the Defendant specifically disputed the stamp and the recipient's authority was unproved. The court found the dispute genuine and capable of inquiry under Order 5 Rule 16, though the point became moot once setting aside was granted on discretionary grounds.
Whether to set aside the default judgments
The Court exercised its discretion under Order 10 Rule 11 to set aside both the interlocutory and ex parte judgments, on terms including security
The Court distinguished regular from irregular default judgments, citing Waweru v Maina. Without deciding the service question, it found the Defendant acted promptly upon learning of the decree, the draft defence raised a bona fide triable issue on liability and contributory negligence, and the overriding objective favoured determination on the merits, subject to security of KShs. 400,000 to protect the Plaintiff.
Functus officio
The Court retained jurisdiction under Order 10 Rule 11 to set aside its own default judgment despite having delivered final judgment after formal proof
The Plaintiff argued the Court was functus officio. The court rejected this, holding that Order 10 Rule 11 expressly reserves jurisdiction to the court that entered the default judgment to set aside or vary it upon just terms, so the doctrine does not bar such an application.
Recall of Plaintiff and reopening of proceedings
Rather than merely recalling the Plaintiff under Section 146(4) of the Evidence Act, the cleaner course was to set the suit down afresh on the contested issues
Having set aside the judgments, the court held the formal proof proceedings could not stand as final. Although s.146(4) of the Evidence Act permits recall of a witness, the court preferred that the Plaintiff rely on his evidence afresh and be cross-examined, with the Defendant calling its own evidence, subject to case-management directions.
Legal principles established
#- Where summons were not properly served, the resulting default judgment is irregular and ordinarily liable to be set aside as of right; where service was proper, the Court retains a discretion to set aside on just terms
- An application under Order 10 Rule 11 to set aside a default judgment does not offend the functus officio doctrine
- A triable issue need only be bona fide and deserving of determination at trial, not ultimately successful
Court orders
#- 1.The interlocutory judgment entered on 8th July 2025 is set aside
- 2.The ex parte judgment delivered on 11th December 2025, together with the consequential decree and execution process founded upon it, is set aside
- 3.All warrants of attachment and sale issued pursuant to the said judgment are vacated
- 4.The Defendant shall deposit KShs. 400,000 as security in Court within thirty (30) days
- 5.In default of compliance with the security order within the stipulated period, the setting aside orders shall automatically lapse
- 6.The Defendant shall file and serve its Statement of Defence within fourteen (14) days
- 7.Upon service of the Defence, the Plaintiff may file any Reply within the time prescribed by law
- 8.The prayer to summon the process server is spent and shall not require separate determination
- 9.The Defendant shall bear the costs of the application
- Jurisdiction invoked
- Order 10 Rule 11 of the Civil Procedure Rules (inherent power of the court that entered default judgment to set it aside on just terms)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bwana v Al-Kamar Trading Company Limited (Civil Case E757 of 2025) [2026] KEMC 817 (KLR)", Case Analysis (2026). Not stated in the judgment (Mombasa CMCC matter). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/817/eng@2026-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.