Stanbic Bank Kenya Limited v Mohamed Farah Bardad

7. The defendant asserted that the plaint raises several triable issues including that the interest charged is excessive and not contractual and that due to hostile security in Northern Kenya where the vehicles were plying, hire purchase contract and performance Cross examination 8. On 6.2.2025, the court allowed prayer 3 of the application seeking cross examination of the process server. 9. The process server, Paul Okendo Nafula, was cross-examined on 1.7.2025. He admitted that he did not file the receipts as evidence that he travelled to Mandera town to effect service. He confirmed that July 2022 was during the campaign period. He acknowledged that a public servant cannot contest for an elective position. 10. The process server intimated that he was given an investigative report which helped in tracing the defendant. Response 11. The plaintiff opposed the application through a replying affidavit sworn by its Head of Recoveries, Amos Mugambi on 8.4.2024. It argued that the application lacks merit and is an abuse of the court process as it is meant to frustrate the execution of the judgment issued on 24.10.2022. 12. The plaintiff contended that the defendant had concealed material facts and founded the application of falsehood to mislead the court. 13. The plaintiff was firm that the defendant was served with summons on 22.7.2022 but failed to enter appearance or file a defence within the stipulated period. It disputed the claim that he learned about the suit on 24.02.2024. It was also firm that the defendant was served with an NTSC but failed to appear in court. It highlighted that the court issued warrants of arrest against the defendant upon being satisfied that the NTSC was duly served. Submissions 14. The plaintiff filed written submissions dated 22.5.2024. On 1.7.2025, the court directed the defendant to file its submissions. However, I did not find the defendant’s submissions on the Judiciary’s Case Tracking System (CTS) while preparing the ruling. 15. The plaintiff urged the court to dismiss the application. It relied on: 1. Geoffrey Kipyegon Moi v Linet Minangi Mshamba [2016] eKLR 2. National Bank of Kenya v Peter Oloo Aringo (Kisumu HCCC No. 91 of 1998) 3. Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670 4. Shadrack Arap Baiywo v Bodi Bach (KSM CA Civil Appeal No. 122 of 1986) [1987] eKLR 5. Synergy Industrial Credit Limited v A. O. Basid Limited [2022] KEHC 13260 (KLR) 6. Orion East Africa Ltd v Komothai Farmers Co-operative Society Limited [2004] eKLR https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19245/eng@2025-12-18 2

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Analysis and Determination 16. The court has the discretion to set aside a default judgment based on principle and according to the unique circumstances of a case. Order 10 Rule 11 of the Civil Procedure Rules. 17. The principles for consideration were aptly captured by the Court of Appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) 18. A distinction is drawn between a regular and irregular default judgment. 19. A regular default judgment is entered where the defendant was duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearances or to file a defence, resulting in the default judgment. 20. An irregular default judgment is entered against a defendant who has not been served or properly served with summons to enter appearance would be set aside ex debito justitiae, as a matter of right, to uphold the dignity of the legal process. 21. In Frigoken Limited v Value Pak Food Limited [2011] KEHC 749 (KLR), the court stated that: “ …if there is no proper or any service of summons to enter appearance to the suit, the resulting default judgment is an irregular one which the court must set aside ex debito justitiae on the application by the defendants. Such judgment is not set aside in the exercise of discretion but as a matter of judicial duty in order to uphold the integrity of the judicial process. However, if the default judgment is a regular one, the court still retains an unfettered discretion to set it aside and any consequential decree or orders upon such terms as are just…” 22. In this case, the defendant stated that he could not defend the matter as he was not served with the summons to enter appearance, notice of entry of judgment and the notice to show cause. 23. On the other hand, the plaintiff contended that even though the defendant had resigned from employment as a teacher, he was still found within Daua Integrated School premises where personal service was effected upon him. 24. I have read the affidavits of service dated 27.7.2022 and 2.6.2023. The process server indicated that he effected service upon the defendant personally at the Daua Integrated School at Mandera Town on 22.7.2023 and 27.5.2023. 25. The defendant stated that he was not at Mandera on those dates as he had left Daua Integrated School on 8.2.2022 and 1.3.2022 when he was released following his early retirement to join politics. 26. The defendant produced a copy of his resignation letter dated 2.1.2022, acknowledgement letter and release letter from the Teacher’s Service Commission dated 1.3.2022 and 8.2.2022. He also produced a copy of his certificate of registration for the national assembly election dated 29.5.2022. 27. In Bowskill v Jofwe & 7 others [2024] KEELC 5836 (KLR) the court observed that: “ In setting aside applications and especially those based on non-service, the court needs exercise maximum caution to prevent the injustice that may occur of declining a setting aside application and hence barring a litigant in the event it eventually turned out that the claims of non-service were, after all, correct. The court must carefully assess the evidence supplied by the parties claiming non-service and weigh it against the assertions of the party alleging service, and determine which of the opposing positions is likely to lead to justice in the case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19245/eng@2025-12-18 3

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And under the Civil Procedure Rules, even where service has been effected but the court is persuaded on the basis of the material presented in a setting aside application that such service was insufficient and is likely to engender an injustice, it may exercise its discretion and set aside the judgment in the case. All this approach is intended to jealously guard a citizen’s constitutional right to a fair hearing as envisaged in Article 50 of the Constitution.” 28. During cross-examination, the process server stated that he had receipts to prove that he travelled to Mandera to effect service on the specified dates. However, he did not produce the receipts. 29. There are doubts on the service. The doubt should be resolved in favour of giving the party concerned an opportunity to be heard. Thus, the default judgment is irregular and ought to be set aside ex debito justiciae to uphold the integrity of the legal process. Disposal 30. Accordingly, in the upshot, the application dated 9.3.2024 is allowed in the following terms: 1. The default judgment entered on 24.10.2022 is set aside. 2. The defendant is granted leave to file his defence within 7 days from the date of service of this ruling upon the defense counsel which failing the judgment in default shall be revert automatically. 3. In the circumstances, costs are awarded to the plaintiff. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 18.12.25 ........................... F. GIKONYO M JUDGE In the presence of: Kabaiko for Plaintiff/Respondent Moseti for defendant CA Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19245/eng@2025-12-18 4

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