( In respect to the Application dated 19 th day of March 2026)
Introduction
1. The application before court is the 1 st to 4 th Defendants’ Notice of Motion application dated 19 th March 2026 brought under Order 10 Rule 11 of the Civil Procedure Rules 2010 , and Section 1A, 1B, and 3A of the Civil Procedure Act Cap. 21 Laws of Kenya. It seeks orders to set aside the ex parte judgment entered herein and restrain the Respondent, his agents, assigns or servants from executing the decree dated 24 th November 2022 and deem the draft statement of defence attached to the application as duly filed or alternatively grant the applicants leave to file it within seven (7) days.
2. The main ground of the application is that the Applicants allege that they were not served with the pleadings herein and only came to know about the present matter at the execution stage. They claim that the director who is said to have been served was deceased as at the time of the alleged service.
3. The Application was opposed vide the Respondent’s Replying Affidavit dated 2 nd April 2026. The Respondent’s contention is that the Applicants were served and even instructed counsel, Mariaria & Co. Advocates, who uploaded a Notice of Appointment to the Court’s online filing portal but did not pay the requisite filing fees. According to the Respondents, they continued serving the said advocate with the court documents including the request for judgment. Counsel stated that they served the Applicants on three occasions and the Applicants never appeared in court.
4. That on 11 th December, 2024, the Applicants through the present law firm filed an application to set aside the ex parte Judgment but the application was struck out because of the manner in which the prayers were framed. Counsel submitted that the instant application seeks to rectify the errors identified by the court in the previous application. The Application was canvassed by way of Written Submissions.
Submissions by the Applicant
5. The Applicant submitted that prior to the service of the execution application they had never interacted with the suit herein. They admitted that they entered into an agreement with the Respondent herein sometime in 2021 for financial accommodation of Kshs . 60,000,000/= (Kenya Shillings Sixty Million) which they defaulted in paying. That appropriate notices were thereby issued by the Respondents indicating their intention to sell the particular property used as security for the loan. That a dispute arose between them and the Respondents regarding the valuation of the property (Security) since parties could not agree on the size of the land in question and the Respondents then proceeded to file this matter in Court.
6. That the Applicants only got to know about suit when the Respondents served them with a Notice to Show Cause dated 18 th day of November 2024 prompting the instant application. They denied ever having instructed the law firm of Mariara & Co. Advocates to represent them in the proceedings and submitted that them said firm of advocates did not file any other document in the said matter apart from a notice of appointment which would mean that they did not have instructions therefore they could not defend this matter.
7. The Applicant submitted that under Order 10 Rule 11, this court has power to set aside the Judgment and bar the Respondent from proceedings with the execution, and since the Applicant had demonstrated that they had not been served, the court should grant the prayers sought.
8. Counsel placed reliance in the case of Wachira Kimani v. Bildad Wachira [2016] KLR and submitted that the court had noted that the rationale for the rule lies largely on the premise that an ex parte judgment, like in this case is not a judgment on the merits and that the interests of justice are such that, if the defaulting party has sound reasons that he should be heard, then that party should indeed be given a hearing.
9. He submitted that the desire of the court would be to do justice and since there is a draft defence with triable issues, then the court should give the applicant a chance to be heard. Counsel placed reliance on the case of Patel vs East Africa Cargo Handling Services wherein Duffus J said:
“ I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgement unless it is satisfied that there is a defence on the merits. In this respect defence on merits, does not mean in my view, a defence that must succeed, it means as Sheridan J put it "a triable issue" that is an issue which raises a prima facie defence and which should go to trial for adjudication".
Submissions by the Respondent
10. The Respondent submitted that the instant application was incompetent having been filed contrary to Order 9 Rule 9 of the Civil Procedure Rules which requires that after judgment is entered, an advocate can only come on record with leave of Court upon application, or with a consent entered with the former advocates. Counsel submitted that neither leave nor a consent had been filed.
11. The Respondent, while acknowledging that this court has discretion to set aside default judgment under Order 10 Rule 11 of the Civil Procedure Rules and to vary or set aside any consequential decree or order upon such terms as are just, submitted that there are principles that the court should apply in exercising this discretion as set down in the case of Mohamed & Another v Shoka (1990) KLR 463 . These are :
a Whether there is a regular judgment;
b Whether there is a defence on merit;
c Whether there is a reasonable explanation for any delay;
d Whether there would be any prejudice by setting aside.
12. On there being a regular judgment, the respondent submitted that an Affidavit of Service dated 15 th February 2022, was filed. That it sets out in detail how service was effected on the Applicants and contrary to the Defendants’ contention that the service was not initially effected on them before the firm of Mariaria & Co. advocates entered appearance on their behalf, the said Affidavit of service clearly shows that the summons and the pleadings were initially served on the Defendants directly.
13. That the Applicants neither challenged the averments contained therein nor made any application to cross-examine the process server and that the 3 rd Applicant, who is a Director of the 1 st and 2 nd Applicants, has not denied ownership of the email address used to serve the Summons and pleadings. Counsel relied on Shadrack Arap Baiywo V Bodi Bach (1987) eKLR where the Court of Appeal while dealing with service held thus:’
“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 affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient 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.”
14. Counsel submitted that indeed the Applicants were served and the 3 rd Defendant as a director of the 1 st and 2 nd Applicants, proceeded to instruct the firm of Mariaria & Co. Advocates to entered appearance on behalf of all the Applicants and the firm filed a Notice of Appointment dated 16 th February 2022 and urged the court to find the Judgment herein was regular.
15. On whether to set aside, Counsel submitted that this was discretionary, but the discretion should be exercised fairly, citing Shanzu Investments Ltd v Commissioner of Lands [1993] eKLR , where the court delivered itself thus:
“The jurisdiction to vary judgment being a judicial discretion should be exercised judicially; and, as is often said, whether judicial discretion should be exercised or withheld in a party’s favour, depends, on a large measure, on the facts of each particular case. The tests for the exercise of this discretion are these: - First, was there a defense on the merits? Secondly, would there be any prejudice? Thirdly, what was the explanation for any delay?”
16. Counsel submitted that a perusal of the draft defence annexed to the Applicants’ Affidavit dated 10 th June, 2025 shows that the Applicants admit that indeed a credit facility was issued to the 1 st Defendant and the 2 nd , 3 rd and 4 th Defendants were guarantors. The Applicants further admit that the 1 st Applicant defaulted on its repayment obligations and that there remains an outstanding amount due under the credit facility. They also acknowledge that the Respondent duly issued all requisite statutory notices. Counsel submitted that the draft defence filed by the Applicants does not disclose that the matter required further interrogation of the Court and it does not raise any triable issue.
17. On whether there is a reasonable explanation for any delay , the Respondent submitted that nonservice being the core basis of the instant Application and in the absence of any other reasonable explanation for failure to file defence within the requisite period, the Applicants are undeserving of the orders sought in the application.
18. On whether there would be any prejudice , counsel submitted that granting the orders sought in the application would be tantamount to assisting in obstruction of justice and further delaying the Plaintiff from recovering the outstanding credit facilities which stands at Kshs. 162,141,472.59/- as at 6 th February 2022.
19. Counsel submitted that in the unlikely event that the court is inclined to exercise its discretion and grant the orders sought, the same should be conditional on the Applicants depositing the entire decretal sum in a joint interest earning account in the names of both advocates.
Analysis and Determination
20. I have considered the Application before court, the Affidavit in opposition and the rival submissions. An application to set aside an ex parte judgment is governed by the provisions of Order 10 Rule 11. The Rule provides that where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just. With this in mind, t he issues for determination are as follows: -
a Whether the Applicants had been served with the pleadings herein
b Whether the Applicants are entitled to the orders sought.
Whether the Applicants had been served with the pleadings herein.
21. Although the Applicants deny service of the pleadings herein and claim that it is alleged that a deceased director was served, the Respondents filed in court an Affidavit of Service dated 15 th February 2022. The said affidavit set out in detail how service was effected on the Applicants. It indicated that the Applicants were all served with the pleadings and thereafter, the law firm of Mariaria and Co. Advocates attempted to file a Notice of Appointment, but which was not paid for and therefore not properly filed.
22. As correctly submitted by the Respodents, the Applicants neither challenged the averments contained in the affidavit of service nor made an application to cross-examine the process server. The email address indicated as the email of service is one belonging to the 3 rd Applicant, who is a Director of the 1 st and 2 nd Applicants. The 3 rd Applicant did not deny ownership of the said email address used to serve the Summons and pleadings. As was held by the Court of Appeal in Shadrack Arap Baiywo V Bodi Bach (1987) eKLR ,
“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 affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient 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.”
23. My finding is that from the return of service, it is clear that the Applicants were duly served and they instructed the law firm of Mariaria & Company Advocates but they did not file any defence to the proceedings.
Whether the Applicants are entitled to the orders sought.
24. The provisions of Order 10 Rule 11 are discretionally and only require the court to be just as it exercises that discretion. I have considered the application herein and the response filed by the Respondents and the submissions to the application. I have also considered the draft defence annexed to the application.
25. From the Application, submissions and the defence, the Applicants do not dispute that they obtained a loan facility from the Respondent, that they defaulted in the repayment and that the requisite statutory notices were issued by the Respondent. The respondents do not also dispute the amount outstanding. The only dispute is on the valuation of property that was used as security for the facility.
26. For the court to set aside a judgment, there must be a defence on merit. Not necessarily a defence that must succeed but one that raises triable issues as was stated in the case of Patel vs East Africa Cargo Handling Services wherein Duffus J said:
“ I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits. In this respect defence on merits, does not mean in my view, a defence that must succeed, it means as Sheridan J put it "a triable issue" that is an issue which raises a prima facie defence and which should go to trial for adjudication"
27. Although the question of valuation process may not be a core issue in the recovery herein, the value of the property will be a major consideration in any further execution process. And in those circumstances, it is a triable issue. So that in the circumstances, the court will deem it just to allow the Applicant to ventilate its defence.
28. However, having found the following: -
a That indeed the Applicants had been served with the pleadings and did not take steps to defend the suit until the execution stage
b That the Applicants do not deny that they obtained a loan facility with the Respondent
c That the Applicants defaulted in repayment and the statutory notices as required in law were issued by the Applicant.
d That the outstanding loan amount is undisputed, and the dispute only relates to the value of security,
29. I will grant the orders as below;
a That the Application dated 16 th March, 2026 is allowed in the following terms:-
i That the Draft defence herein be filed and served within (Seven) 7 days from today.
ii That the full decretal amount of Kshs 162,141,472.59 be deposited in a joint interest earning account in the names of the two advocates within 45 (forty-five) days from today.
iii That the Applicants do pay thrown away costs of Kshs 100,000/-(One hundred thousand only) to the Respondents within 7 (seven) days from today.
iv That in default of any of the orders above, the application dated 19 th March, 2026 will be deemed to have been dismissed and the Respodents will be at liberty to proceed with execution, without further reference to court.
Ruling delivered, dated and signed virtually at Nairobi
this 18 th day of September, 2026.
In the Presence of :
Lispa – Court Assistant
N/A……………… for the Applicant
Mr. Gakunga for plaintiff/ Respondent
Court:
Matter be mentioned on 10/11/26 for compliance, pretrial and/or further directions. A mention notice to issue to the Defendant.
Introduction
1. The application before court is the 1 st to 4 th Defendants’ Notice of Motion application dated 19 th March 2026 brought under Order 10 Rule 11 of the Civil Procedure Rules 2010 , and Section 1A, 1B, and 3A of the Civil Procedure Act Cap. 21 Laws of Kenya. It seeks orders to set aside the ex parte judgment entered herein and restrain the Respondent, his agents, assigns or servants from executing the decree dated 24 th November 2022 and deem the draft statement of defence attached to the application as duly filed or alternatively grant the applicants leave to file it within seven (7) days.
2. The main ground of the application is that the Applicants allege that they were not served with the pleadings herein and only came to know about the present matter at the execution stage. They claim that the director who is said to have been served was deceased as at the time of the alleged service.
3. The Application was opposed vide the Respondent’s Replying Affidavit dated 2 nd April 2026. The Respondent’s contention is that the Applicants were served and even instructed counsel, Mariaria & Co. Advocates, who uploaded a Notice of Appointment to the Court’s online filing portal but did not pay the requisite filing fees. According to the Respondents, they continued serving the said advocate with the court documents including the request for judgment. Counsel stated that they served the Applicants on three occasions and the Applicants never appeared in court.
4. That on 11 th December, 2024, the Applicants through the present law firm filed an application to set aside the ex parte Judgment but the application was struck out because of the manner in which the prayers were framed. Counsel submitted that the instant application seeks to rectify the errors identified by the court in the previous application. The Application was canvassed by way of Written Submissions.
Submissions by the Applicant
5. The Applicant submitted that prior to the service of the execution application they had never interacted with the suit herein. They admitted that they entered into an agreement with the Respondent herein sometime in 2021 for financial accommodation of Kshs . 60,000,000/= (Kenya Shillings Sixty Million) which they defaulted in paying. That appropriate notices were thereby issued by the Respondents indicating their intention to sell the particular property used as security for the loan. That a dispute arose between them and the Respondents regarding the valuation of the property (Security) since parties could not agree on the size of the land in question and the Respondents then proceeded to file this matter in Court.
6. That the Applicants only got to know about suit when the Respondents served them with a Notice to Show Cause dated 18 th day of November 2024 prompting the instant application. They denied ever having instructed the law firm of Mariara & Co. Advocates to represent them in the proceedings and submitted that them said firm of advocates did not file any other document in the said matter apart from a notice of appointment which would mean that they did not have instructions therefore they could not defend this matter.
7. The Applicant submitted that under Order 10 Rule 11, this court has power to set aside the Judgment and bar the Respondent from proceedings with the execution, and since the Applicant had demonstrated that they had not been served, the court should grant the prayers sought.
8. Counsel placed reliance in the case of Wachira Kimani v. Bildad Wachira [2016] KLR and submitted that the court had noted that the rationale for the rule lies largely on the premise that an ex parte judgment, like in this case is not a judgment on the merits and that the interests of justice are such that, if the defaulting party has sound reasons that he should be heard, then that party should indeed be given a hearing.
9. He submitted that the desire of the court would be to do justice and since there is a draft defence with triable issues, then the court should give the applicant a chance to be heard. Counsel placed reliance on the case of Patel vs East Africa Cargo Handling Services wherein Duffus J said:
“ I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgement unless it is satisfied that there is a defence on the merits. In this respect defence on merits, does not mean in my view, a defence that must succeed, it means as Sheridan J put it "a triable issue" that is an issue which raises a prima facie defence and which should go to trial for adjudication".
Submissions by the Respondent
10. The Respondent submitted that the instant application was incompetent having been filed contrary to Order 9 Rule 9 of the Civil Procedure Rules which requires that after judgment is entered, an advocate can only come on record with leave of Court upon application, or with a consent entered with the former advocates. Counsel submitted that neither leave nor a consent had been filed.
11. The Respondent, while acknowledging that this court has discretion to set aside default judgment under Order 10 Rule 11 of the Civil Procedure Rules and to vary or set aside any consequential decree or order upon such terms as are just, submitted that there are principles that the court should apply in exercising this discretion as set down in the case of Mohamed & Another v Shoka (1990) KLR 463 . These are :
a Whether there is a regular judgment;
b Whether there is a defence on merit;
c Whether there is a reasonable explanation for any delay;
d Whether there would be any prejudice by setting aside.
12. On there being a regular judgment, the respondent submitted that an Affidavit of Service dated 15 th February 2022, was filed. That it sets out in detail how service was effected on the Applicants and contrary to the Defendants’ contention that the service was not initially effected on them before the firm of Mariaria & Co. advocates entered appearance on their behalf, the said Affidavit of service clearly shows that the summons and the pleadings were initially served on the Defendants directly.
13. That the Applicants neither challenged the averments contained therein nor made any application to cross-examine the process server and that the 3 rd Applicant, who is a Director of the 1 st and 2 nd Applicants, has not denied ownership of the email address used to serve the Summons and pleadings. Counsel relied on Shadrack Arap Baiywo V Bodi Bach (1987) eKLR where the Court of Appeal while dealing with service held thus:’
“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 affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient 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.”
14. Counsel submitted that indeed the Applicants were served and the 3 rd Defendant as a director of the 1 st and 2 nd Applicants, proceeded to instruct the firm of Mariaria & Co. Advocates to entered appearance on behalf of all the Applicants and the firm filed a Notice of Appointment dated 16 th February 2022 and urged the court to find the Judgment herein was regular.
15. On whether to set aside, Counsel submitted that this was discretionary, but the discretion should be exercised fairly, citing Shanzu Investments Ltd v Commissioner of Lands [1993] eKLR , where the court delivered itself thus:
“The jurisdiction to vary judgment being a judicial discretion should be exercised judicially; and, as is often said, whether judicial discretion should be exercised or withheld in a party’s favour, depends, on a large measure, on the facts of each particular case. The tests for the exercise of this discretion are these: - First, was there a defense on the merits? Secondly, would there be any prejudice? Thirdly, what was the explanation for any delay?”
16. Counsel submitted that a perusal of the draft defence annexed to the Applicants’ Affidavit dated 10 th June, 2025 shows that the Applicants admit that indeed a credit facility was issued to the 1 st Defendant and the 2 nd , 3 rd and 4 th Defendants were guarantors. The Applicants further admit that the 1 st Applicant defaulted on its repayment obligations and that there remains an outstanding amount due under the credit facility. They also acknowledge that the Respondent duly issued all requisite statutory notices. Counsel submitted that the draft defence filed by the Applicants does not disclose that the matter required further interrogation of the Court and it does not raise any triable issue.
17. On whether there is a reasonable explanation for any delay , the Respondent submitted that nonservice being the core basis of the instant Application and in the absence of any other reasonable explanation for failure to file defence within the requisite period, the Applicants are undeserving of the orders sought in the application.
18. On whether there would be any prejudice , counsel submitted that granting the orders sought in the application would be tantamount to assisting in obstruction of justice and further delaying the Plaintiff from recovering the outstanding credit facilities which stands at Kshs. 162,141,472.59/- as at 6 th February 2022.
19. Counsel submitted that in the unlikely event that the court is inclined to exercise its discretion and grant the orders sought, the same should be conditional on the Applicants depositing the entire decretal sum in a joint interest earning account in the names of both advocates.
Analysis and Determination
20. I have considered the Application before court, the Affidavit in opposition and the rival submissions. An application to set aside an ex parte judgment is governed by the provisions of Order 10 Rule 11. The Rule provides that where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just. With this in mind, t he issues for determination are as follows: -
a Whether the Applicants had been served with the pleadings herein
b Whether the Applicants are entitled to the orders sought.
Whether the Applicants had been served with the pleadings herein.
21. Although the Applicants deny service of the pleadings herein and claim that it is alleged that a deceased director was served, the Respondents filed in court an Affidavit of Service dated 15 th February 2022. The said affidavit set out in detail how service was effected on the Applicants. It indicated that the Applicants were all served with the pleadings and thereafter, the law firm of Mariaria and Co. Advocates attempted to file a Notice of Appointment, but which was not paid for and therefore not properly filed.
22. As correctly submitted by the Respodents, the Applicants neither challenged the averments contained in the affidavit of service nor made an application to cross-examine the process server. The email address indicated as the email of service is one belonging to the 3 rd Applicant, who is a Director of the 1 st and 2 nd Applicants. The 3 rd Applicant did not deny ownership of the said email address used to serve the Summons and pleadings. As was held by the Court of Appeal in Shadrack Arap Baiywo V Bodi Bach (1987) eKLR ,
“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 affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient 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.”
23. My finding is that from the return of service, it is clear that the Applicants were duly served and they instructed the law firm of Mariaria & Company Advocates but they did not file any defence to the proceedings.
Whether the Applicants are entitled to the orders sought.
24. The provisions of Order 10 Rule 11 are discretionally and only require the court to be just as it exercises that discretion. I have considered the application herein and the response filed by the Respondents and the submissions to the application. I have also considered the draft defence annexed to the application.
25. From the Application, submissions and the defence, the Applicants do not dispute that they obtained a loan facility from the Respondent, that they defaulted in the repayment and that the requisite statutory notices were issued by the Respondent. The respondents do not also dispute the amount outstanding. The only dispute is on the valuation of property that was used as security for the facility.
26. For the court to set aside a judgment, there must be a defence on merit. Not necessarily a defence that must succeed but one that raises triable issues as was stated in the case of Patel vs East Africa Cargo Handling Services wherein Duffus J said:
“ I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits. In this respect defence on merits, does not mean in my view, a defence that must succeed, it means as Sheridan J put it "a triable issue" that is an issue which raises a prima facie defence and which should go to trial for adjudication"
27. Although the question of valuation process may not be a core issue in the recovery herein, the value of the property will be a major consideration in any further execution process. And in those circumstances, it is a triable issue. So that in the circumstances, the court will deem it just to allow the Applicant to ventilate its defence.
28. However, having found the following: -
a That indeed the Applicants had been served with the pleadings and did not take steps to defend the suit until the execution stage
b That the Applicants do not deny that they obtained a loan facility with the Respondent
c That the Applicants defaulted in repayment and the statutory notices as required in law were issued by the Applicant.
d That the outstanding loan amount is undisputed, and the dispute only relates to the value of security,
29. I will grant the orders as below;
a That the Application dated 16 th March, 2026 is allowed in the following terms:-
i That the Draft defence herein be filed and served within (Seven) 7 days from today.
ii That the full decretal amount of Kshs 162,141,472.59 be deposited in a joint interest earning account in the names of the two advocates within 45 (forty-five) days from today.
iii That the Applicants do pay thrown away costs of Kshs 100,000/-(One hundred thousand only) to the Respondents within 7 (seven) days from today.
iv That in default of any of the orders above, the application dated 19 th March, 2026 will be deemed to have been dismissed and the Respodents will be at liberty to proceed with execution, without further reference to court.
Ruling delivered, dated and signed virtually at Nairobi
this 18 th day of September, 2026.
In the Presence of :
Lispa – Court Assistant
N/A……………… for the Applicant
Mr. Gakunga for plaintiff/ Respondent
Court:
Matter be mentioned on 10/11/26 for compliance, pretrial and/or further directions. A mention notice to issue to the Defendant.