Osembe v Kipkai Enterprises Limited (Civil Appeal 499 of 2019) [2025] KECA 1126 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that ignoring court summons can cost you millions — a tenant lost her appeal against a Kshs.5 million judgment for unpaid rent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge properly exercised his discretion in declining to set aside the ex-parte judgment
- 2.Whether service of summons to enter appearance was duly effected on the appellant
- 3.Whether the trial court erred in failing to allow cross-examination of the process server
- 4.Whether the application to set aside was brought timeously
- 5.Whether the draft defence and counterclaim disclosed triable issues
Key legal issues
#Exercise of judicial discretion in declining to set aside an ex-parte judgment
The trial court properly exercised its discretion; the appellate court found no misdirection or capriciousness warranting interference.
The Court applied the Shah v Mbogo principles on interference with discretionary decisions and the Kimani Kigano and Richard Ncharpi Leiyagu principles on setting aside default judgments. Having found that service was duly effected and that the appellant's explanation for her lack of knowledge and delay was unsubstantiated, the Court concluded there was no basis to find the discretion was exercised incorrectly or capriciously.
Due service of summons to enter appearance
Service was duly effected at Galleria Mall on 23rd June 2016, and the affidavit of service complied with Order 5 rule 15 of the Civil Procedure Rules, 2010.
The process server's affidavit was corroborated by the respondent's director, who identified the appellant. The appellant did not dispute being at Galleria Mall at the material date and time, nor her interaction with the director; her bare denial of service, without challenging the specifics of time, date and place, lent credence to the service account. Her claim of learning of the suit through an anonymous caller and being abroad was unsubstantiated by call logs, passport or travel documents.
Cross-examination of the process server
Examination of a serving officer under Order 5 rule 16 is discretionary, not mandatory, and cross-examination could not have altered the finding on service.
The Court reproduced Order 5 rule 16, which uses the word 'may', and held that the court retains discretion to examine the serving officer where doubt as to service exists. Here the trial court was satisfied on the affidavit of service corroborated by the director's affidavit, so declining cross-examination was not an error and could not have changed the outcome.
Delay in bringing the application to set aside
The approximately four-month delay between judgment (22nd September 2017) and the application (17th January 2018) was not sufficiently explained.
Having rejected the appellant's claim that she was out of the country for lack of evidence, the Court found she offered no satisfactory explanation for the delay. Unexplained delay weighs against the exercise of discretion to set aside a default judgment, consistent with the principle that the discretion is not intended to assist a person who deliberately seeks to obstruct the course of justice.
Triable issues in the draft defence and counterclaim
The draft defence and counterclaim did not raise triable issues meriting a full trial.
There was a valid lease obliging the appellant to pay rent; she acknowledged the arrears in her correspondence. Her counterclaim based on alleged repairs was unsupported by any evidence. The trial court had considered the issue and found no evidence of payment of the arrears, so the appellate court was not persuaded the trial court overlooked the question of triable issues.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a lower court unless satisfied that the decision is clearly wrong because of misdirection, reliance on wrong matters, or failure to consider relevant matters, resulting in a wrong conclusion.
- Examination of a serving officer under Order 5 rule 16 of the Civil Procedure Rules, 2010 is a matter of judicial discretion, not a mandatory requirement.
- A party who disputes service but does not challenge the specific date, time and place of alleged service lends credence to the process server's affidavit of service.
Court orders
#- 1.The appeal was dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- ELC Case No. 586 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Procedure Act framework); no specific constitutional or statutory article is invoked in the judgment.
Relief refused
#Setting aside of the ex-parte judgment, decree and consequential orders
Service was duly effected; the appellant's claim of late knowledge was unsubstantiated; the delay of about four months was unexplained; the draft defence did not disclose triable issues
Costs
The appeal was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, this appeal is devoid of any merit and is accordingly dismissed with costs to the respondent.
The sole issue for our determination is whether the learned judge properly exercised his discretion in declining to set aside the ex-parte judgment.
She merely denied service without challenging the specifics as to the time, date, and place of service.
the examination of a serving oficer under Order 5 rule 16 of the Civil Procedure Rules, 2010 is a matter of judicial discretion, not a mandatory requirement
Issues in the judgment
#The judgment attributes the trial judgment of 22nd September 2017 to 'Kemei, J.' in the respondent's submissions, whereas the trial ruling under appeal was delivered by Eboso, J.; the identity of the judge who delivered the 2017 formal-proof judgment is not otherwise clarified.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osembe v Kipkai Enterprises Limited (Civil Appeal 499 of 2019) [2025] KECA 1126 (KLR)", Case Analysis (2025). Court of Appeal, Nairobi – appeal from ELC Case No. 586 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1126/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.