1. This ruling is in respect to two applications, namely the Notice of Motion dated 14th November 2025 filed by the 4th Respondent and the Notice of Motion dated 19th November 2025 filed by the 2nd Respondent. The applications seek, inter alia, stay of execution of the decree issued on 27th February 2025, injunctions against execution, and orders setting aside the ex parte judgment entered against the applicants together with all consequential orders.
Applicants' Case
2. The 4th Respondent contends that he sold motor vehicle Registration Number KAQ 272J to the 5th Respondent on 3rd February 2012, approximately six years before the accident giving rise to the suit, and therefore ceased to have ownership, possession or control over the vehicle. He further states that he was never served with summons to enter appearance and only became aware of the suit after proclamation of his goods in execution. He therefore urges the Court to set aside the judgment and stay execution. He relies on Section 8 of the Traffic Act , Securicor Kenya Ltd vs. Kyumba Holdings Ltd [2005] KECA 348 (KLR) , Osapil vs. Kaddy [2000] 1 EA 187 , and Kamau vs. Lihanda & Another [2024] KEHC 1284 (KLR) to argue that registration is merely prima facie evidence of ownership and that ownership can be rebutted by evidence of sale.
3. Similarly, the 2nd Respondent submits that it disposed of motor vehicle Reg. No. KBQ 678C on 21st March 2014, four years before the accident. It contends that it was never served with summons to enter appearance and only learnt of the proceedings upon commencement of execution. It argues that the sale agreement sufficiently rebuts the statutory presumption of ownership under Section 8 of the Traffic Act and that it cannot be held vicariously liable for the acts of a driver who was neither its servant nor agent. It also seeks stay of execution pending determination of its application.
Appellant's Response
4. The Appellant opposes both applications. She maintains that the applicants were duly served with summons and that affidavits of service remain unchallenged. She submits that the applicants have neither sought to cross-examine the process server nor demonstrated sufficient cause to warrant setting aside the judgment. The Appellant further argues that the applicants have not exhibited draft defences raising triable issues and that the alleged sale agreements do not displace the official National Transport Safety Authority (NTSA) records which showed them as registered owners at the material time. She urges that both applications be dismissed with costs.
Issues for Determination
5. Having considered the pleadings, affidavits and submissions, I find that the issues falling for determination are:
a) Whether the applicants have established sufficient grounds for setting aside the ex parte judgment.
b) Whether the applicants are entitled to stay of execution pending determination of the applications.
Analysis and Determination
6. The power of the Court to set aside an ex parte judgment is discretionary and is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake. The discretion, however, must be exercised judiciously and not to assist a litigant who deliberately seeks to obstruct or delay the course of justice. This principle was settled in Shah vs. Mbogo [1967] EA 116 and reaffirmed in Patel vs. E.A. Cargo Handling Services Ltd [1974] EA 75 .
7. Where an applicant alleges non-service of summons, the Court must first determine whether service was properly effected because a judgment entered without service is liable to be set aside ex debito justitiae. Conversely, where service is established, the Court considers whether the applicant has disclosed a plausible defence raising triable issues.
8. In the present case, the Appellant has exhibited affidavits of service deponing that the applicants were served with summons. Significantly, neither applicant sought leave to cross-examine the process server despite disputing service. In Kenya Orient Insurance Ltd vs. Cargo Stars Ltd & 2 Others [2017] eKLR the Court of Appeal held that where an affidavit of service is not challenged through cross-examination, its contents remain uncontroverted. The same position was adopted in Baiywo vs. Bach [1987] KLR 89 . I therefore find no sufficient basis for rejecting the affidavits of service placed before the Court.
9. The Applicants have also relied on sale agreements to rebut ownership under Section 8 of the Traffic Act. While I agree that Section 8 of the said Act creates only a rebuttable presumption of ownership and that authorities such as Securicor Kenya Ltd vs. Kyumba Holdings Ltd (supra) recognize that ownership may be proved otherwise, those are substantive issues that go to liability and are more appropriately determined upon a full hearing. They do not, by themselves, invalidate a regularly entered judgment.
10. More importantly, neither applicant has demonstrated sufficient cause for the Court to exercise its discretion in setting aside the judgment. The applications do not satisfactorily explain the prolonged inaction following the alleged sale of the vehicles nor do they establish that the judgment was irregular.
11. Regarding stay of execution, the applicable principles are found under Order 42 Rule 6 of the Civil Procedure Rules, namely proof of substantial loss, promptness of the application and provision of security. The applicants have not demonstrated substantial loss beyond the ordinary consequences of execution. As was held in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR , execution by itself does not amount to substantial loss. Neither have the applicants offered security for the due performance of the decree as required by the Rule.
12. Having carefully considered the applications, affidavits, submissions and the applicable law, I am not persuaded that the applicants have established sufficient grounds for setting aside the ex parte judgment or for grant of stay of execution.
13. Accordingly, I make the following orders:
a) The Notice of Motion dated 14th November 2025 is dismissed.
b) The Notice of Motion dated 19th November 2025 is dismissed.
c) The interim orders of stay, if any, are hereby discharged.
d) Execution of the decree may proceed in accordance with the law.
e) The costs of both applications shall be borne by the 2nd and 4th Respondents/Applicants.
It is so ordered.
Applicants' Case
2. The 4th Respondent contends that he sold motor vehicle Registration Number KAQ 272J to the 5th Respondent on 3rd February 2012, approximately six years before the accident giving rise to the suit, and therefore ceased to have ownership, possession or control over the vehicle. He further states that he was never served with summons to enter appearance and only became aware of the suit after proclamation of his goods in execution. He therefore urges the Court to set aside the judgment and stay execution. He relies on Section 8 of the Traffic Act , Securicor Kenya Ltd vs. Kyumba Holdings Ltd [2005] KECA 348 (KLR) , Osapil vs. Kaddy [2000] 1 EA 187 , and Kamau vs. Lihanda & Another [2024] KEHC 1284 (KLR) to argue that registration is merely prima facie evidence of ownership and that ownership can be rebutted by evidence of sale.
3. Similarly, the 2nd Respondent submits that it disposed of motor vehicle Reg. No. KBQ 678C on 21st March 2014, four years before the accident. It contends that it was never served with summons to enter appearance and only learnt of the proceedings upon commencement of execution. It argues that the sale agreement sufficiently rebuts the statutory presumption of ownership under Section 8 of the Traffic Act and that it cannot be held vicariously liable for the acts of a driver who was neither its servant nor agent. It also seeks stay of execution pending determination of its application.
Appellant's Response
4. The Appellant opposes both applications. She maintains that the applicants were duly served with summons and that affidavits of service remain unchallenged. She submits that the applicants have neither sought to cross-examine the process server nor demonstrated sufficient cause to warrant setting aside the judgment. The Appellant further argues that the applicants have not exhibited draft defences raising triable issues and that the alleged sale agreements do not displace the official National Transport Safety Authority (NTSA) records which showed them as registered owners at the material time. She urges that both applications be dismissed with costs.
Issues for Determination
5. Having considered the pleadings, affidavits and submissions, I find that the issues falling for determination are:
a) Whether the applicants have established sufficient grounds for setting aside the ex parte judgment.
b) Whether the applicants are entitled to stay of execution pending determination of the applications.
Analysis and Determination
6. The power of the Court to set aside an ex parte judgment is discretionary and is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake. The discretion, however, must be exercised judiciously and not to assist a litigant who deliberately seeks to obstruct or delay the course of justice. This principle was settled in Shah vs. Mbogo [1967] EA 116 and reaffirmed in Patel vs. E.A. Cargo Handling Services Ltd [1974] EA 75 .
7. Where an applicant alleges non-service of summons, the Court must first determine whether service was properly effected because a judgment entered without service is liable to be set aside ex debito justitiae. Conversely, where service is established, the Court considers whether the applicant has disclosed a plausible defence raising triable issues.
8. In the present case, the Appellant has exhibited affidavits of service deponing that the applicants were served with summons. Significantly, neither applicant sought leave to cross-examine the process server despite disputing service. In Kenya Orient Insurance Ltd vs. Cargo Stars Ltd & 2 Others [2017] eKLR the Court of Appeal held that where an affidavit of service is not challenged through cross-examination, its contents remain uncontroverted. The same position was adopted in Baiywo vs. Bach [1987] KLR 89 . I therefore find no sufficient basis for rejecting the affidavits of service placed before the Court.
9. The Applicants have also relied on sale agreements to rebut ownership under Section 8 of the Traffic Act. While I agree that Section 8 of the said Act creates only a rebuttable presumption of ownership and that authorities such as Securicor Kenya Ltd vs. Kyumba Holdings Ltd (supra) recognize that ownership may be proved otherwise, those are substantive issues that go to liability and are more appropriately determined upon a full hearing. They do not, by themselves, invalidate a regularly entered judgment.
10. More importantly, neither applicant has demonstrated sufficient cause for the Court to exercise its discretion in setting aside the judgment. The applications do not satisfactorily explain the prolonged inaction following the alleged sale of the vehicles nor do they establish that the judgment was irregular.
11. Regarding stay of execution, the applicable principles are found under Order 42 Rule 6 of the Civil Procedure Rules, namely proof of substantial loss, promptness of the application and provision of security. The applicants have not demonstrated substantial loss beyond the ordinary consequences of execution. As was held in James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR , execution by itself does not amount to substantial loss. Neither have the applicants offered security for the due performance of the decree as required by the Rule.
12. Having carefully considered the applications, affidavits, submissions and the applicable law, I am not persuaded that the applicants have established sufficient grounds for setting aside the ex parte judgment or for grant of stay of execution.
13. Accordingly, I make the following orders:
a) The Notice of Motion dated 14th November 2025 is dismissed.
b) The Notice of Motion dated 19th November 2025 is dismissed.
c) The interim orders of stay, if any, are hereby discharged.
d) Execution of the decree may proceed in accordance with the law.
e) The costs of both applications shall be borne by the 2nd and 4th Respondents/Applicants.
It is so ordered.