Muinde v Mwilu & another (Civil Case E041 of 2022) [2025] KEMC 176 (KLR)
The bottom line
#A Kenyan court scrapped a judgment against a company because it was never properly served with court papers, ruling improper service removes the judge's discretion.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there are sufficient grounds to warrant setting aside of the Judgment in default entered herein
- 2.What other orders should the court make if need be
- 3.What orders should the court make with respect to costs of the application
Key legal issues
#Whether the 2nd defendant (a corporation) was properly served with summons to enter appearance
The 2nd defendant was not properly served; the 1st defendant, who accepted service as a 'Director', was not proven to be a director or principal officer, and service on an employee does not satisfy Order 5 rule 3.
Order 5 rule 3 prescribes that a corporation may be served on its secretary, director or other principal officer, or by alternative modes at the registered office or address. The process server served the 1st defendant at the 2nd defendant's offices, but the plaintiff adduced no evidence that the 1st defendant was a director, while the applicant produced evidence negating that fact. Each defendant must also be served separately under Order 5 rule 7. Service on a mere employee does not comply with the law.
Whether the default and final judgments against the 2nd defendant should be set aside
Yes - because service was improper, the court had no discretion; the judgment had to be set aside ex debito justitiae, and the draft defence raised triable issues.
The discretion under Order 10 rule 11 is wide (Patel v EA Cargo Handling Services; Shah v Mbogo), but where there has been no proper service the court has no discretion (Pithon Waweru Maina v Thuka Mugiria). No acceptable evidence showed service of the notice of entry of judgment under Order 22 rule 6. The draft defence raised triable issues, and denying a party a hearing should be the last resort.
Legal principles established
#- Where there has been no proper service on a corporation, the court has no discretion and an ex parte judgment must be set aside as of right (ex debito justitiae)
- Service of summons on a corporation must be effected on the secretary, director or other principal officer, or in the alternative modes prescribed by Order 5 rule 3
- Execution proceedings based on an irregular judgment are equally irregular and must be set aside
Court orders
#- 1.The application dated 28/4/2025 is allowed as of right
- 2.The interlocutory judgment entered against the 2nd defendant on 13/1/2023 as well as the final judgment delivered on 19/2/2024 are set aside as against the 2nd defendant
- 3.No execution proceedings shall be carried out against the 2nd defendant pursuant to the default judgment; expired warrants of attachment and sale will not be set aside
- 4.Any charges payable to Milan Auctioneers shall be paid by the Plaintiff
- 5.The 2nd defendant is granted leave to defend the suit and shall file and serve a statement of defence within 14 days
- 6.The plaintiff shall file a reply to defence within 14 days from service of the statement of defence
- 7.There shall be no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 10 rule 11, Order 22 rule 22(1) and (2), Order 40 rule 1(a) and (b) of the Civil Procedure Rules
Relief refused
#Setting aside the expired warrants of attachment and sale of movable property
The warrants had already expired, so there was no need to set aside what had lapsed
Costs of the application sought by the 2nd defendant
The error leading to the irregular judgment lay with the plaintiff and the court
Costs
No orders as to costs - 'As the error was on the part of the plaintiff and the court, there shall be no orders as to costs.'
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.
a. The application dated 28/4/2025 is hereby allowed as of right;
b. The interlocutory judgment entered against the 2nd defendant on 13/1/2023 as well as the final judgment delivered on 19/2/2024 are hereby set aside as against the 2nd defendant;
Any execution proceedings based on an irregular judgment are equally irregular and must be set aside.
The mere fact that the 1st defendant could have been an employee of the 2nd defendant does not mean that he could be served on behalf of the 2nd defendant.
g. As the error was on the part of the plaintiff and the court, there shall be no orders as to costs.
Issues in the judgment
#The judgment refers to 'final judgment delivered on 19/2/2024' in the orders and disposition, but elsewhere refers to the irregular judgment and interlocutory judgment without clearly distinguishing the regularity of each; the application itself sought setting aside of 'judgment and decree passed against the 2nd defendant/applicant on 19/2/2024'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muinde v Mwilu & another (Civil Case E041 of 2022) [2025] KEMC 176 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/176/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.