Wafula v Kariuki & another (Civil Suit E485 of 2022) [2026] KEMC 97 (KLR)
The bottom line
#A Nakuru court set aside a default judgment against Bungoma Line Sacco because its draft defence raised real issues, but ordered it to pay the plaintiff's costs first.
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 firm of M/s Wakoli & Wakoli Advocates is properly on record for the 2nd Defendant given Order 9 Rule 9 of the Civil Procedure Rules
- 2.Whether the ex-parte judgment entered against the 2nd Defendant should be set aside and leave granted to defend the suit
Key legal issues
#Whether Order 9 Rule 9 CPR barred the incoming advocates from acting for the 2nd Defendant
Order 9 Rule 9 applies only to changes of advocate after judgment where an advocate previously acted; since the 2nd Defendant never entered appearance or appointed an advocate, the rule does not apply and the firm is properly on record.
The court distinguished S.K. Tarwadi v Veronica Muehlemann, where counsel came in after judgment in place of a prior advocate. Here there was no entry of appearance at all before the ex-parte judgment, so there was no 'change of advocate'. The application and the firm of Wakoli & Wakoli were therefore properly before the court.
Whether the failure to enter appearance was excusable given the claim of lack of service
The applicant's claim of improper service failed because it did not cross-examine the process server or deponents, and the affidavit of service disclosed valid physical service on the 2nd Defendant's manager who signed the served copies.
The court held the explanation 'lame' as the applicant had not sought cross-examination of the process server or the manager who received summons. The affidavit of service dated 31/05/2022 confirmed valid physical service on the 2nd Defendant's manager, who signed and dated the served copies.
Whether the draft defence raises triable issues warranting setting aside the default judgment
The annexed draft defence discloses a serious triable issue mainly as to liability, so the ex-parte judgment is set aside and leave to defend granted, subject to payment of the plaintiff's costs.
Applying the James Kanyiita Nderitu principles, the court examined the draft defence and found it raised a serious triable issue on liability. Having found a triable defence, the discretion tilted toward setting aside the default judgment in the interest of justice, with the condition that the plaintiff's costs so far incurred be paid first.
Legal principles established
#- A regular default judgment may be set aside under Order 10 rule 11 and the court has unfettered discretion considering reason for default, time elapsed, triable issues, prejudice and the interest of justice
- Order 9 Rule 9 CPR applies only where there is a change of advocates post-judgment, not where no advocate was on record before judgment
- Courts lean towards deciding cases on merits rather than encouraging default judgments based on procedural technicalities
Court orders
#- 1.The application by the 2nd Defendant allowed
- 2.Ex-parte judgment and consequential orders set aside; leave granted to the 2nd Defendant to defend the suit
- 3.Costs so far incurred by the plaintiff to be paid by the 2nd Defendant before the draft defence is filed and within 30 days of assessment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction to set aside ex-parte/default judgment under Order 10 rule 11 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution
Relief refused
#Costs of the application and the auctioneer to be borne by the Plaintiff
The court instead conditioned the setting aside on payment of costs incurred by the plaintiff
Costs
Application allowed subject to payment of costs so far incurred by the plaintiff before filing the draft defence and within 30 days of assessment; no costs of the application or auctioneer awarded against the plaintiff
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.
I have gone through the annexed draft and I do find that it discloses a serious triable issue mainly as to liability. Having found a defence raising triable issue herein, I do hereby allow the application, but subject to the payment of the costs so far incurred by the plaintifi in these proceedings.
The payments be done before the draft defence is filed and, in any case, within 30 days of assessment.
There was in fact no entry of appearance by the 2nd defendant, and I thus do find the above provisions of Order 9 Rule 9 not applicable herein.
The Afidavit of service is dated 31/05/2022 and it confirms that the 2nd Defendant’s manager, Mr. Augustine Wangui Muriithi, of P.O. Box 522, Bungoma and the mobile number provided, was served with the summons, plaint, verifying afidavit and list of documents.
Issues in the judgment
#The judgment is dated 19 May 2026 but records a future mention date of 03/11/26; the suit number is not stated in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula v Kariuki & another (Civil Suit E485 of 2022) [2026] KEMC 97 (KLR)", Case Analysis (2026). Not stated in the judgment (suit number not disclosed). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/97/eng@2026-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.