Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistrateAllowedNot stated in the judgment

JNM (Suing as Father and Next Friend of LWN) v Tereza & another (Civil Suit 126 of 2015) [2026] KEMC 99 (KLR)

Magistrates' Court
26 May 2026
1,265 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Nakuru court voided a default judgment because handing summons to the driver isn't valid service on the vehicle owner in Kenya.

What this practically means

#

Executive summary

#
The 2nd defendant, Muturi Tereza, applied to set aside ex parte proceedings and judgment entered against her and for unconditional leave to file her statement of defence out of time. She attributed her failure to enter appearance to lack of personal service, discovering the suit only on 10/11/2025 when served with a proclamation of attachment, warrants of attachment and sale, and an auctioneer's fee note via WhatsApp in execution of the decree. Perusal of the court file revealed an affidavit of service indicating service on her was effected through the 1st defendant, alleged to be the driver of the accident motor vehicle she owned, who accepted service promising to forward the documents. The court applied the settled principles in James Kanyiita Nderitu v Marios Philotas Ghikas on setting aside default judgments, holding the discretion to be unfettered and exercised to avoid injustice. It held that service on a co-defendant driver does not constitute valid service on the vehicle owner unless the driver is the owner's authorized or recognized agent, and that unacknowledged service on the driver under Order 5 rule 13 renders service legally defective. Finding the ex parte proceedings irregular, the court set them aside ex debito justitiae, held the application timely since it followed promptly upon the discovery of the suit, granted unconditional leave to file the defence out of time, and awarded costs of the application to the applicant. Directions were issued for filing and serving the defence and compliance documents within 21 days, with pleadings to close and PTD on 17/09/2026.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 2nd defendant was properly served with summons and pleadings
  2. 2.Whether the ex parte proceedings and consequent judgment should be set aside
  3. 3.Whether the 2nd defendant should be granted leave to file her statement of defence out of time

Key legal issues

#
01

Validity of service on the 2nd defendant

Holding

Service on the 2nd defendant through the 1st defendant (the driver) was not proper personal service; the ex parte proceedings were irregular.

Reasoning

The affidavit of service showed service was effected through the 1st defendant, alleged to be the driver, who promised to forward the summons. Each independent defendant must be served individually in person or through an authorized agent. Under Order 5 rule 13, unacknowledged service on the driver on behalf of the owner renders service legally defective, so the ex parte proceedings were irregular and had to be set aside ex debito justitiae.

p. 3
02

Timeliness of the application to set aside

Holding

The application was filed promptly upon the applicant learning of the proceedings, so there was no inordinate delay.

Reasoning

The 2nd defendant became aware of the suit on 10/11/2025 when served with execution documents (proclamation of attachment and warrants) via WhatsApp. She immediately instructed counsel who discovered the ex parte judgment. Since the application followed promptly upon that discovery, it could not be said to have been filed after prolonged, inordinate or unreasonable delay.

p. 3

Legal principles established

#
  • Service of summons on a co-defendant driver does not constitute valid service on the vehicle owner unless the driver is the owner's authorized/recognized agent.
  • A court has unfettered discretion to set aside default judgment to avoid injustice, and leans toward deciding cases on merits.

Court orders

#
  1. 1.The ex parte proceedings in the matter set aside
  2. 2.The 2nd defendant granted unconditional leave to file her statement of defence out of time
  3. 3.Costs of the application awarded to the 2nd defendant/applicant
  4. 4.The 2nd defendant to file and serve her defence and compliance documents within 21 days; parties to proceed and close pleadings and PTD on 17/09/2026

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Inherent discretion to set aside ex parte proceedings and default judgment under Order 10 rule 11 of the Civil Procedure Rules; Article 159 Constitution of Kenya

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.

This honorable court hereby set aside the ex parte proceedings in this matter
p. 3Final orders - setting aside ex parte proceedings
This honorable court hereby unconditionally grant the 2nd defendant/ applicant leave to file her statement of defence out of time.
p. 3Final orders - leave to defend out of time
Costs of this application awarded to the 2nd Defendant/ applicant
p. 3Costs
Under our laws, serving a court summons to a co-defendant on the grounds that they are the driver of the other defendant (the registered vehicle owner) generally does not constitute valid service for the owner.
p. 2Service on co-defendants
In normal circumstances, courts do lean towards a policy of deciding cases on merits rather than encourage ex parte or default judgments based on procedural technicalities.
Policy favouring determination on merits

Issues in the judgment

#
minor

The judgment refers to an affidavit of service sworn on 18/11/2021 by Ochiel Fredrick Awich, but later states that the affidavit of service is dated 31/05/2022; the two dates conflict.

minor

The replying affidavit is sworn on 23/03/2026, a date after the ruling year context but within the judgment's internal chronology; noted for completeness as the date appears unusual in sequence with the 2025 execution service.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "JNM (Suing as Father and Next Friend of LWN) v Tereza & another (Civil Suit 126 of 2015) [2026] KEMC 99 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/99/eng@2026-05-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.