DMW alias WM (Minor Suing thro' his Father and Next Friend WS) v Mulinge (Civil Case E184 of 2023) [2026] KEMC 95 (KLR)

3. i. The accident motor vehicle was insured by Directline Assurance Company, who were served but failed to appoint counsel to defend the suit; ii. The plaintifi did not serve summons upon the defendant; iii. The plaintifi failed to serve the defendant with a notice of entry of judgment and notice to execute; iv. The proceedings herein are tainted with procedural fiaws and ought to be set aside; v. It is fair and just for the prayers sought to be granted so that the ends of justice are attained. In the afidavit in support of the application, the applicant reiterated the grounds in support of the application and maintained that he was not served with summons to enter appearance. The applicant attached copies of documents in support of the application. The Plaintifi's Response 4. The plaintifi opposed the application by filing a Replying afidavit sworn by his next friend. The next friend deposed that the application was frivolous, a non-starter and vexatious as the prayers sought had been overtaken by events. The respondent averred that the defendant as duly served with summons to enter appearance as per the afidavit of service on record. That a regular judgment was entered and the plaintifi obtained a decree. The plaintifi stated that upon proclamation, the defendant initiated an out of court settlement with the plaintifi’s counsel and Auctioneers. That a consent was entered into and the applicant made part payment of Ksh. 250,000/=. The plaintifi argued that the application was an afterthought and made in bad faith. He attached documents to support his position. Main Issues or Questions For Determination 5. It appears that there is no objection to the firm of Gichuhi Kivindyo & Associates Advocates coming on record for the defendant. Having perused the application as well as the response by the Plaintifi, together with the parties' submissions, I find that the main issues or questions for determination are as follows: i. Whether there are suficient grounds to warrant setting aside of the Judgment herein and granting the defendant leave to defend the suit; ii. What other orders should the court make if need be? iii. What orders should the court make with respect to costs of the application? The Applicant’s Submissions 6. The parties agreed to dispose of the application by way of written submissions which were duly filed. The applicant submitted that he was not served with summons nor notice of entry of judgment. That the defendant has a triable defence and the plaintifi will not be prejudiced if the reliefs sought are granted. The applicant prayed to be awarded costs. The applicant relied on the following authorities: 1. Kenya Alliance Insurance Company Limited v Stanley Kieti Samson & 3 others, Nairobi ELC No. E143 of 2023; 2. James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR; 3. James Wanyoike & 2 others v CMC Motors Group Limited & 4 others [2015] eKLR; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/95/eng@2026-02-19 2

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4. Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR. The Respondent's Submissions 7. In his submissions, the respondent argued that the applicant was guilty of laches. That the applicant was aware of the suit and judgment that had been entered against him. The respondent submitted that the applicant voluntarily initiated out of court negotiations with the Auctioneers and respondent’s Advocate, culminating to a binding consent. That the applicant honoured part of the terms of the consent. The applicant argued that the application was an afterthought and a tactical attempt to evade a commitment he had willingly undertaken. That having willingly entered into a binding contract, the applicant was estopped from denying its validity. 8. The respondent submitted that the allegation that the applicant’s insurer failed to instruct counsel to defend the suit is untenable. The respondent submitted that the applicant was duly served with summons to enter appearance. That it would be prejudicial to the respondent if the matter starts afresh since matters are required to be heard and determined without unreasonable delay. The respondent urged the court to dismiss the application. Analysis and Determination The Legal Provisions 9. Order 6 rule 1 of the Civil Procedure Rules stipulates that: “ Where a defendant has been served with summons to appear, he shall unless some order be made by the court, file his appearance within the time prescribed in the summons." 10. Order 7 rule 1 of the Civil Procedure Rules provides that: “ Where a defendant has been served with summons to appear he shall, unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintifi within fourteen days from the date of filing the defence and file an afidavit of service". 11. Order 10, rule 11 of the Civil Procedure Rules provides: “ Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.” 12. Section 1A of the Civil Procedure Act provides as follows: “ (1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and afiordable resolution of the civil disputes governed by the Act. (2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give efiect to the overriding objective specified in subsection (1). (3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that efiect, https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/95/eng@2026-02-19 3

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to participate in the processes of the Court and to comply with the directions and orders of the Court". 13. 14. Section 1B provides thus: “ (1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims— (a) the just determination of the proceedings; (b) the eficient disposal of the business of the Court; (c) the eficient use of the available judicial and administrative resources; (d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost afiordable by the respective parties; and (e) the use of suitable technology". Section 3A provides: “ Nothing in this Act shall limit or otherwise afiect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court". 15. Article 159(2) (b) of the Constitution provides that in exercising judicial authority, the courts and tribunals shall be guided by the principle that justice shall not be delayed. Analysis 16. I have carefully considered the application as well as the plaintifi's response. I have further considered the submissions made on behalf of the parties. From the provisions of Order 10 rule 11 of the Civil Procedure rules, it is clear that the power to set aside a judgment entered in default of appearance or defence is within the discretion of the court. In the case of Patel v EA Cargo Handling Services Ltd [1974] EA 75 the Court of Appeal, per Dufius President of the Court stated thus: “ There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself or fetter the wide discretion given to it by the rules……….the principle obviously is that unless and until the Court has pronounced judgment upon the merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any of the rules of procedure.” 17. In Shah v Mbogo [1967] E.A 116 at 123, Harris J, held as follows; “ I have carefully considered, in relation to the present application, the principles governing the exercise of the court's discretion to set aside a judgement obtained ex parte. This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/95/eng@2026-02-19 4

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deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice." 18. 19. In the case of Smith v Middleton [1972] SC 30, it was held that discretionary power should be exercised judicially and in a selective and discriminatory manner, not arbitrarily and idiosyncratically. The principles to be considered by the court in an application of this nature were well articulated in the case of Pithon Waweru Maina v Thuka Mugiria [1983] eKLR. In the said case, the Court of Appeal held that the principles governing the exercise of judicial discretion to set aside an ex parte judgment obtained in the absence of an appearance or defence by the defendant or upon the failure of either party to attend the hearing are: 1. There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just; 2. This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice; 3. The court has no discretion where it appears there has been no proper service; 4. The power to set aside judgment does not cease to apply because a decree has been extracted; 5. Some of the matters to be considered when an application is made are, the facts and circumstances, both prior and subsequent, and all the respective merits of the parties together with any other material factors which appear to have entered into the passing of the judgment, which would not or might not have been present had the judgment not been ex parte and whether or not it would be just and reasonable, to set aside or vary the judgment, upon terms to be imposed; 6. The nature of the action should be considered, the defence if one has been brought to the notice of the court, however irregularly, should be considered; 7. The question as to whether the plaintifi can reasonably be compensated by costs for any delay occasioned should be considered; 8. It should be remembered that to deny the subject a hearing should be the last resort of a court. There is an afidavit of service indicating service of summons to enter appearance and the plaint. The afidavit was sworn on 24/1/2024 by one George Odhiambo Odero, a process server. Paragraph 3 of the afidavit of service is germane to this application and for that reason, I will reproduce it as hereunder: 3. That on the same day, I called the defendant on 0701-XXX and spoke to Mr. Benson Mulinge and explained to him the purpose of calling. Mr. Benson Mulinge confirmed to me that he was aware of the accident but he was in Kitui and not around Makindu. He informed me that I send the documents to his agent by the name Judith through her cell number 0727-XXX. I phoned her and requested we meet at her ofice at Kibwezi. I introduced myself and the purpose. She declined to sign the documents being summons to enter appearance attached with plaint, Verifying afidavit, Witness statement, List of witnesses and List of documents and opted to forward to the Directline Insurance head ofice Nairobi for further instructions.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/95/eng@2026-02-19 5

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20. 21. 22. From the above paragraph, the following facts are discernible: a. The defendant was not personally served with summons to enter appearance and plaint; b. It is not clear how and where the Process server obtained the defendant’s alleged phone number from; c. It is not clear whether the process server met the said Judith and if so, where they met. I say so because the address given by the Process server is for Mombasa. The plaintifi’s firm of Advocates is based at Mombasa. The process server did not indicate the place at which he received the documents for purposes of service. Given the circumstances, it is safe to conclude that the documents were received at Mombasa. The Process server deposed that he requested to meet Judith at her ofice in Kibwezi. There is no indication that the Process server travelled to Kibwezi and on which date. It is also not clear whether Judith agreed to meet the Process server and whether they actually met. The process server does not disclose how he knew where the ofice was and the exact location of the ofice in Kibwezi, assuming he travelled to Kibwezi. It is also not clear how the Process server was able to identify Judith, in the event that they met; d. The Process server does not expressly state that he served Judith. He only states that she declined to sign the documents. The court cannot assume that Judith was served but declined to sign in acknowledgment of receipt. Order 5 rule 8 of the Civil Procedure Rules provides: (1) Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be suficient. (2) A summons may be served upon an advocate who has instructions to accept service and to enter an appearance to the summons and judgment in default of appearance may be entered after such service.” (Emphasis supplied) Assuming that Judith was served, was she an agent of the defendant empowered to accept service? Order 9 rule 2 of the Civil Procedure Rules defines recognized agents as: The recognized agents of parties by whom such appearances, applications and acts may be made or done are— (a) subject to approval by the court in any particular suit persons holding powers of attorney or an afidavit sworn by the party authorizing them to make such appearances and applications and do such acts on behalf of parties; (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts; (c) in respect of a corporation, an oficer of the corporation duly authorized under the corporate seal.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/95/eng@2026-02-19 6

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23. There is nothing to show that the alleged Judith fits in any of the above categories. Order 5 rule 15 of the Civil Procedure Rules provides in part that: (1) The serving oficer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an afidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The afidavit of service shall be in Form No 4 of Appendix A with such variations as circumstances may require.” (Underlining mine) 24. The afidavit on record does not fully comply with the above provision of law. The afidavit creates room for assumptions. In my view, an afidavit of service is not meant to be interpreted on assumptions. It must prove service clearly, specifically, and from the personal knowledge of the process server. There must be strict proof of service. Service of process is a matter of fact, not speculation. The afidavit must clearly state how, when, where, and upon whom service was efiected. Courts do not rely on guesswork or assumptions to conclude service was proper. Any doubt or ambiguity is usually resolved in favour of the person alleged to have been served, especially where judgment was entered ex parte. In view of the foregoing, I find that there was no proper service of summons to enter appearance and plaint upon the applicant. It therefore follows that the judgment was irregular. 25. The respondent raised an interesting argument that the applicant having entered into a consent with the respondent on settlement of the claim and having made part-payment, he is estopped from challenging the judgment. Does the consent and part-payment regularize the non-service and irregular judgment? The applicant does not deny having entered into the consent and making part payment. From the averments by both parties, it is clear that the agreement was entered into at the time when the applicant was under pressure of execution against him. His property had been attached. It is worth noting that the agreement between the applicant and counsel for the respondent was not filed and adopted in court. It cannot therefore be termed as a consent order. 26. In my view, if service of summons was improper, irregular, or doubtful, part payment does not automatically regularize the judgment. My opinion is that a consent entered into or payment made under the pressure of execution does not amount to admission of liability or acceptance of the judgment. It is trite law that where the court finds that there was no service of summons and plaint, it does not have discretion in setting aside judgment entered in default of appearance or defence. Service of court process is key to validity of the judgment. As already indicated hereinabove, to deny a party a hearing should be the last resort. I have considered the draft defence. Although most facts have been admitted by the applicant, the draft defence raises the issue of contributory negligence, albeit in a feeble manner. Contributory negligence is a triable issue. Whether it succeeds is an issue to be determined on merit at the hearing. 27. Although there is a consent between the parties on settlement and that the applicant has made partpayment, the circumstances are inclined towards setting aside the default judgment, since there was no proper service upon the applicant. As already pointed out, service must be strictly proved. It would be unjust to oust the applicant from the seat of justice simply because he entered into an agreement and made part payment under pressure of execution. No prejudice will be occasioned on the respondent if the judgment is set aside. In any event, the respondent is already holding money received from the applicant. On the other hand, it would be prejudicial to the applicant if execution is levied against him when the court has already found that he was not properly served with court process. Although the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/95/eng@2026-02-19 7

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application was made long after the applicant had been made aware of the judgment, I find that the delay was not inordinate. Disposition 28. Consequently, I proceed to make the following orders: a. The application dated 1/11/2025 is hereby allowed; b. The interlocutory judgment in default entered herein on 31/1/2024 and final judgment delivered on 14/5/2025 are hereby set aside; c. The applicant is granted leave to defend the suit. Consequently, the applicant shall file and serve his statement of defence and all relevant documents within 14 days from today; d. For avoidance of doubt, no execution shall proceed against the applicant until the suit is heard and determined; e. The issue of the sum of money already paid to the plaintifi/respondent and the Auctioneers shall be dealt with at the determination of the suit. This will encourage the parties to expedite the matter; f. The costs of the application shall be in the cause. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 19TH DAY OF FEBRUARY, 2026. Y.A SHIKANDA SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/95/eng@2026-02-19 8

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