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3. The substance of the instant Application is that the Defendant was reportedly never served with the Summons to Enter Appearance as averred by Moses Kuloba Keya in his Adavit sworn on 31st January 2026. The Defendant/Applicant averred that the said Moses Kuloba Keya only served him with the Summons to Enter Appearance in Bungoma CMC CC No. E475 of 2025 (“the sister le”) which he duly entered appearance and led a Statement of Defence. 4. The Defendant/Applicant further averred that he only became aware of this suit when the sister le came up for mention on 07th July 2026. He added that his annexed draft Statement of Defence raised triable issues which this court needs to hear and determine before condemning him unheard. 5. Further, the Defendant/Applicant averred that he had led the instant Application in good faith and without delay, and that any prejudice occasioned to the Plainti/Respondent if the orders herein are granted was capable of being compensated by an award of costs. 6. In opposition, the Plainti/Respondent led a Replying Adavit sworn on 06th August 2026 where he maintained that the Defendant/Applicant was properly served with pleadings and the Summons to Enter Appearance in this case as well as the sister le as evidenced by the Adavits of Service on record. 7. The Plainti/Respondent also averred that the annexed draft Statement of Defence did not raise any triable issues since the averments in the said Statement of Defence were mere denials. He further averred that the minor will be prejudiced in terms of expenses if the orders herein are granted, given that the orders sought were going to delay the conclusion of this matter. 8. Given the above, the Plainti/Applicant urged this court not to exercise its discretion in favour of the Defendant/Applicant who had deliberately ignored court process by dismissing the instant Application with costs. 9. The instant Application was canvassed by way of written submissions. Those written submissions largely reiterated the parties’ averments in their respective pleadings. The said submissions also cited authorities often cited by parties in such cases in support of their respective cases. Therefore, it will not serve any purpose to summarize those written submissions in this ruling. 10. Be that as it may, this court hastens to add that it has given due regard to the said written submissions, as well as the pleadings on record in their entirety. Analysis & Determination 11. The Defendant/Applicant seeks to set aside the Interlocutory Judgment herein entered against him by Hon. Onyango (S.R.M) as well as all the consequential orders arising therefrom. 12. It is given that where judgment in default of appearance or defence or for failure to serve has been entered under the various provisions of Order 10 of the Civil Procedure Rules (the Rules), Rule 11 of that Order gives the court a wide discretion to set aside or vary such judgment and any consequential decree or order “upon such terms as are just”. 13. In Shah v Mbogo & Another [1967] EA 116, it was held, inter alia, that the Court’s discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/907/eng@2026-08-27 2

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14. In Chemolo & Another v Kubende [1986] KLR 492, the Court of Appeal pronounced itself thus regarding this subject “ …..The concern of the Court is to do justice to the parties and the court would not impose conditions on itself to fetter the discretion. However, where a regular judgment has been entered, the court will not usually set it aside unless it is satised that there are triable issues which raise a prima facie defence which should go to trial….”(Emphasis added) 15. Further, a court, when faced with an Application like the instant Application, is required to determine whether the ex parte judgment sought to be set aside is a regular or an irregular one. This can be gleaned from Mwala v Kenya Bureau of Standards EALR [2001] 1 EA 148, where the court stated: “ ….[T]o all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte judgment. Where the judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justiciae for a court should never countenance an irregular judgment on its record.” 16. The foregoing authorities leave no doubt in this court’s mind that the issues which this court needs to determine are: a. Whether the exparte judgment was regularly entered b. Whether the applicant has a defence on the merits that raises triable issues c. Whether the instant Application has been led without undue delay d. Whether any prejudice will be occasioned to the Plainti if the orders sought are not granted Whether the ex parte judgment was regularly entered 17. The Defendant/Applicant denied having been served with the Summons to Enter Appearance in this matter, while the Plainti/Respondent took the opposite position by maintaining that the disputed service was conducted in compliance with the provisions on personal service set out in the Rules. 18. This court has had the benet of going through the Adavits of Service sworn by Moses Kuloba Keya on 31st January 2026. That Adavit of Service set out in detail how the Summons to Enter Appearance in this matter were personally served upon the Defendant/Applicant. Paragraph 5 of the said Adavit of Service shows that the Defendant/Applicant promised to enter appearance in this matter and comply, just as he did in the sister le. 19. The weight to be attached to the contents of an Adavit of Service can be gleaned from the eminent work by Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670 where it is stated that: There is a presumption of service as stated in the process server's report, and the burden lies on the party questioning it, to show that the return is incorrect. But an adavit of the process server is admissible in evidence and in the absence of contest it would normally https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/907/eng@2026-08-27 3

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be considered sucient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross-examination given to those who deny the service. [Underlining mine for emphasis] 20. In Shadrack Arap Baiywo v Bodi Bach [1987] eKLR, the Court of Appeal held as follows:There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an adavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sucient evidence of the regularity of the proceedings. But if the fact of service is denied, it is desirable that the process server should be put into the witness box and opportunity of cross examination given to those who deny the service.”(Emphasis added) 21. The authorities cited above show that the contents of an Adavit of Service are deemed to be true unless the party disputing the contents of an Adavit of Service leads evidence to prove otherwise. A party disputing the contents of an Adavit can do so by cross-examining the process server or leading any other credible evidence to controvert the contents of an impeached Adavit of Service. 22. The Defendant/Applicant simply denied having been served with the Summons to Enter Appearance. A mere denial cannot controvert averments made under oath. Where the Defendant/Applicant wanted to eectively dislodge the averments in the Adavit of Service sworn by Moses Kuloba Keya on 31st January 2026, it was incumbent upon him to seek orders for the said Moses Kuloba Keya to appear before this court for cross-examination on his averments in the impugned Adavit of Service. 23. The failure by the Defendant/Applicant to summon the Plainti’s process server for cross-examination to test the veracity of the process server’s averments in the impugned Adavit of Service meant the averments therein remained cogent and believable on a balance of probabilities. This inevitably leads to the conclusion that the Defendant/Applicant was personally served with the Summons to Enter Appearance in accordance with the Rules. 24. It is against this backdrop that this court nds and holds that the interlocutory judgment entered against the Defendant/Applicant on 02nd February 2026 was regularly entered. Whether the Defendant/Applicant has a defence on the merits that raises triable issues 25. This court has had the benet of perusing the Defendant/Applicant’s Statement of Defence herein. That Statement of Defence raises legal and factual issues that include whether the accident herein occurred, and whether the Plainti/Respondent negligently contributed to the occurrence of the accident herein 26. Contrary to the Plainti/Respondent’s averments and submissions that the said draft Statement of Defence is full of mere denials, this Court respectfully thinks that issues such as whether the accident occurred, whether the Plainti/Applicant was injured as a result of the accident, and contributory negligence are triable issues, not necessarily ones that must succeed, but bona de trial issues between the parties, nonetheless, that warrant hearing and determination on merit. Whether the instant Application has been led without undue delay 27. Interlocutory judgment was entered against the Defendant/Applicant on 02nd February 2026. The instant Application was led on 03rd August 2026. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/907/eng@2026-08-27 4

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28. This Court is of the considered view that a period of six months does not amount to inordinate delay by a party in moving a court for appropriate orders. Whether any prejudice will be occasioned to the Plainti/Respondent or the Defendant/Applicant if the orders sought are granted 29. The record shows that this matter is pending formal proof hearing. Therefore, if the orders sought are granted, the only setback likely to be suered by the Plainti/Applicant will be a slight delay in the disposal of this matter by some more days. 30. This Court is of the considered view that such a setback can be remedied by fast-tracking the hearing and determination of this case, as well as an order for payment of thrown-away costs. 31. On the other hand, if the orders sought by the Defendant/Applicant are not granted, the Defendant/ Applicant will be condemned unheard without the triable issues raised in his draft Statement of Defence are heard and determined on merit. Such a move will infringe on the Defendant/Applicant’s right to a fair trial guaranteed under article 50(2)(k) of the Constitution. 32. In the penultimate, this Court nds and holds that the circumstances of this case militate against declining to grant the orders sought by the Defendant/Applicant. Determination 33. 34. The instant Application partially succeeds in the following terms: a. The ex parte judgment entered herein on 02nd December 2026 and all other consequential orders arising therefrom are set aside b. That the Defendant/Applicant is granted leave to le a Statement of Defence and all compliance documents and serve the same upon the Plainti/Respondent within fourteen (14) days from today c. The draft Statement of Defence annexed to the instant Application will be deemed as duly led upon payment of the prescribed court fees d. The Plainti/Respondent to le and serve their Reply to the Statement of Defence (if need be) within seven (7) days of service of the Statement of Defence e. The Parties herein to comply with Order 11 of the Civil Procedure Rules within thirty (30) days from the date hereof. f. The Defendant/Applicant shall, however, pay the Plainti/Respondent thrown-away costs of KShs.10,000/= within fourteen (14) days from the date hereof; in default, the orders above will lapse without further reference to this court g. Costs of this Application will abide the outcome of this suit It is so ordered. SIGNED AND DELIVERED VIA CTS AT BUNGOMA THIS 27TH DAY OF AUGUST 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/907/eng@2026-08-27 5

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