Munala v Oness Pele Ltd (Civil Suit E174 of 2025) [2026] KEMC 823 (KLR)
The bottom line
#A Kenyan court ruled WhatsApp service to a director's phone counts as valid service on a company, then gave the company a conditional second chance to defend the case.
What this practically means
#Executive summary
#Key legal issues
#Whether service of summons via WhatsApp to a director's personal mobile number constituted valid service on the defendant company
Service was valid; the police abstract listed the director's number 0731 269 400 as the owner's contact, so anyone interacting with the vehicle would reasonably treat it as the company's contact, and the message was delivered and read.
Order 5 Rule 3(a) CPR permits service on a corporation through a director. The number used was retrieved from the police abstract, the very document the defendant relied upon. The defendant offered no proof of separate official communication channels. It was reasonable to assume the company used the director's number as its contact, and it fell to the company to disprove authority, which it did not do.
Whether the default judgment should be set aside as of right or in the court's discretion
Setting aside as of right applies only where service is proved wanting; here service was proved, so the defendant had to invoke the court's discretion, which it did not, offering no excusable mistake.
The court restated that setting aside is as of right only where summons were not served, and otherwise is discretionary under Order 10 rule 11 where it is just, to avoid injustice from accident, inadvertence or excusable mistake. The discretion does not assist a party who deliberately sought to obstruct or delay justice. The defendant adamantly claimed as of right and never attempted to excuse its director's failure to act on receipt of the summons.
Whether the draft defence raised triable issues warranting unconditional leave to defend
The draft defence consisted of general mere denials and did not demonstrate a serious intention to defend, justifying conditional leave only.
The court examined the draft defence annexed as OW 3 and found it made up of general denials blaming the plaintiff as an unlawful unauthorized passenger on a frolic of his own and sole cause of the accident. Given that posture, and the plaintiff's alternative concession offering to allow the motion on conditions, the court exercised its discretion to grant conditional leave to defend with terms proposed by the plaintiff, which it found lenient and fair.
Legal principles established
#- Service of summons on a corporation may be effected on its secretary, director or other principal officer under Order 5 Rule 3(a) of the Civil Procedure Rules, and where the company's own contact details (such as a police abstract) identify a director's number as the company's contact, service via that number is proper and the burden shifts to the company to disprove authority.
- A regular ex parte judgment will not usually be set aside unless the defence raises triable issues warranting a full trial; the defendant bears the duty to show sufficient cause to deprive a plaintiff of the fruits of judgment.
Court orders
#- 1.Leave granted to the defendant to file out of time its memorandum of appearance on conditions precedent that it pay the plaintiff Kshs. 20,000/= thrown away costs within 30 days
- 2.Upon payment of the throw away costs the defendant has 14 days to file and serve its statement of defence, witness statements and all relevant documents
- 3.Should the defendant fail to pay the throw away costs within 30 days, the leave to defend lapses automatically and the plaintiff is at liberty to execute
- 4.Upon full compliance with the conditions, costs of the application abide the suit
- 5.Upon default the defendant shall bear the plaintiff's costs of the motion assessed at Kshs. 10,000/= and the plaintiff may proceed with execution
- 6.Upon due compliance the proceedings shall be reopened and the judgment of 2/4/2026 set aside to allow inter partes hearing
- 7.Mention on 15/10/2026 to confirm compliance with conditions
- Jurisdiction invoked
- Order 10 rule 11, Order 5 Rules 6, 8, 12, 15, 16 and 17 of the Civil Procedure Rules 2010 and sections 1A, 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munala v Oness Pele Ltd (Civil Suit E174 of 2025) [2026] KEMC 823 (KLR)", Case Analysis (2026). Mariakani CC E 174 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/823/eng@2026-08-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.