The Appellants herein, being dissatisfied with the ruling of Honourable S. A. Opande, Principal Magistrate, delivered on 27th February 2025 in Kangundo Chief Magistrate’s Court Civil Suit No. E165 of 2017, hereby appeal to the High Court of Kenya on the following grounds:
1. That the learned magistrate erred in law and fact by failing to appreciate the constitutional and statutory right to a fair hearing under Article 50(1) of the Constitution of Kenya, despite the Appellants’ genuine and reasonable explanation for the delay in filing the defence.
2. That the learned magistrate misdirected himself by placing undue emphasis on procedural technicalities, contrary to Article 159(2)(d) of the Constitution, which mandates courts to administer justice without undue regard to procedural technicalities.
3. That the learned magistrate erred in law and fact by failing to consider the prejudice that the Appellant would suffer if they were denied the opportunity to defend the suit on merit, thereby occasioning a miscarriage of justice.
4. That the learned magistrate failed to appreciate that the delay in filing the defence was occasioned by a bona fide mistake by the Appellants’ counsel, which mistake should not be visited upon the Appellant, especially where no deliberate effort to obstruct justice was demonstrated.
5. That the learned magistrate erred in law and fact by failing to exercise his discretion judiciously and in the interest of justice, particularly considering that the Respondents had not demonstrated any substantial prejudice that could not be compensated by an award of costs.
6. That the learned magistrate’s finding that the Appellants application was an abuse of the court process was erroneous, unwarranted, and not supported by the evidence before the court, particularly in light of the Appellants’ consistent efforts to regularize their position.
7. That the learned magistrate failed to give due regard to the overriding objective of the Civil Procedure Act, which requires courts to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes.
8. That the learned magistrate failed to recognize that the Appellant had participated in the proceedings, albeit without a defence on record, and that their intention to defend the suit was clear from their active involvement and prior applications.
9. That the learned magistrate failed to consider that the Appellants defence raises triable issues deserving to be heard and determined on merit, which would allow the court to resolve the dispute comprehensively and justly.
The Appellant prays that:
a) This Appeal be allowed.
b) The ruling delivered on 27th February, 2025, and all consequential orders arising therefrom, be set aside.
c) The Appellant be granted leave to file their defence out of time, and the defence be deemed as duly filed and served.
d) The costs of this appeal and the application in the lower court be awarded to the appellant.
Brief facts
This appeal arises from the judgment of Hon, S. A, Opande (PM) delivered on 22nd May, 2025 in Kangundo CMCC No. 165 of 2017. The Appellant, Alfred Wambua Muindi (suing as the personal representative of the Estate of Samuel Muindi Sila alias Muindi Kavungi alias Muindi Sila) appeals against the entire judgment.
During the trial court proceedings, the Appellant herein failed to file a Defence within the prescribed time.
The Appellant made both oral and formal applications for leave to file their Defence out of time which were both dismissed.
The matter proceeded to a full hearing, during which both the Plaintiff and the 1st Defendant closed their respective cases. The Appellant, having not filed a defence, was unable to tender any evidence, call any witnesses and subsequently barred by the court to participate in the hearing.
The Appellant herein, aggrieved by the judgement filed a Memorandum of Appeal dated 17th July 2025.
Appellant submissions
Whether the judgement delivered on 22nd May, 2025 should be set aside
Article 165(6) of the Constitution of Kenya 2010 grants the High Court supervisory jurisdiction over subordinate courts as well as over any person, body or authority exercising or judicial or quasi-judicial function.
Article 165(7) provides as follows: -
(7) For the purposes of clause (6) the High Court may call for the record of any proceeding before any subordinate court or person, body or authority referred to in clause(b), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
The appellant submits that should this court proceed and investigate the entirety of this impugned trial the following issues will remain apparent;
The trial court lacked jurisdiction to hear and determine the suit. The Plaintiffs in their amended plaint dated 29th October, 2020 make reference to the acquisition, sale, dispute and operations of the 1st Defendant with respect to share number 142 that is held with the 1st Defendant in the trial suit.
It is not in dispute that the main issue for determination in the trial suit between the parties therein referred to a share 142 held by the 1st Defendant Komarock Ranching and Farming Cooperative Society. This being a dispute regarding the ownership of a share in a cooperative society, by virtue of Section 76 of the Cooperatives Societies Act, this dispute ought to have been heard and determined by the Cooperatives Tribunal.
That the suit was Res judicata, secondly, the judgment of the trial court is irregular for res judicata as the issue of sale and purchase of share 142 in the 2"4 respondent had already been heard and determined previously in Kangundo Civil Case no. 33 of 1992 by Hon. Charo.
The Appellant then the 2nd Defendant in the trial suit filed a Notice of Preliminary Objection dated 18 March 2019 objecting to the trial court's proceedings as being barred for Res judicata. A perusal of the proceedings of the trial court and specifically the ruling of the trial court delivered on 2nd October 2019 which ought to have determined the Appellant's Preliminary Objection.
The said ruling only determined the 1st Defendant's Preliminary Objection and ignored the 2nd Defendant's Preliminary Objection. The court however in that ruling in its determination held as follows; I have also noted that the Plaintiff had already amended the Plaint removing share No. 142 from the pleadings. The issues that now remain can be dealt with at the main trial.
The trial suit was time barred and was filed without leave of court. The Judgement in Kangundo Civil Case No. 33 of 1992 it indicates that it was rendered in 30th September, 1992, this is also affirmed at paragraph 15 of the Plaintiff’s Re Amended Plaint dated 29th October, 2020. The present suit was therefore filed 25 years after entry of the judgement.
However, Section 27 and 28 of the Limitation of Actions Act, Order 37 Rule 6 of the Civil Procedure Rules, provides an avenue through which parties can seek extension and or enlargement of time to file suits out of time.
The Appellant submits that the proceedings in the trial court rendered the judgement of 22nd May 2025 irregular and bad in law. It is therefore in the interest of justice that the said judgement is nullified and set aside.
Whether the suit be remitted back to the trial court for hearing de novo and the appellant be allowed to file a defense
The Appellant herein was the 2nd Defendant in the trial suit. Prior to the judgment of 22.4 May 2025, the declaratory orders thereon and as is averred at paragraph 4 of the Re Amended the Estate of the Late Samuel Muindi Sila in which he is the administrator held the contested share no 142 1n the 1st Defendant.
The court proceedings record shows that this suit was commenced in 2017 and placed before the court on 13th November 2017, the Appellant entered appearance through the firm of Ndemo Mokaya on 20 February 2019 approximately 1 year and three months after the suit was filed.
Upon entry into these proceedings, the Appellant filed a Notice of Preliminary Objection for this suit for Res judicata. From the court records the ruling for the Appellants Preliminary Objection was to be issued vide the ruling dated 2nd October, 2019, the Appellant however reiterates that the said ruling did not render a determination on his Preliminary Objection.
From 2nd October 2019 when the fore stated ruling was issued the court proceedings bear record that the Plaintiff fixed a mention date for 29th July 2020 for the suit in the registry on 8th July 2020 approximately 7 months later. This matter ultimately came before Hon. Orimba on 7 October 2020 a year after it was last placed before him. On the said 7th October 2020 as the records will bear witness the Plaintiff had not complied with the court's direction in its ruling of 2nd October 2019 to file its amended Plaint 1 year later.
On 14th November, 2024 when the matter came up for hearing, counsel for the Appellant informed the court that there was never a pre-trial in respect of the matter and as such was not ready to proceed with the hearing as they had not yet filed their defence, The Counsel for the Appellant further notified the court that he had filed a preliminary Objection citing the matter was res judicata. Counsel further submitted to the court that to the best of his knowledge no pre-trial conference was done with respect to the suit.
The court retired and subsequently rendered a ruling on the following terms;
a) With respect to the Preliminary Objection the court directed that it would render a decision on the Preliminary Objection together with the judgment in the main suit depending on whether the Preliminary Objection succeeded or not.
The trial court record reflects the said ruling with respect to the Preliminary objection was not delivered.
The Appellant subsequently filed a Notice of Motion Application dated 26th November, 2024 seeking to set aside the proceedings of the suit on 14th November, 2024 and the Appellant be granted leave to file his defence out of time. In support of the Application, the Appellant attached a draft defence. The Appellant submits that the draft defence at paragraph 12 to 22 raised extremely pertinent and triable issues which the trial court ought to have allowed be ventilated and put through the test of evidence and cross examination.
Upon filing of submissions by the parties the trial court returned a ruling dated 27th February, 2025 dismissing the application.
The Appellant submits that it is trite law that when a court is faced with an application to set aside proceedings and/ or judgement to enable a party file a defence, such court is required among other factors to examine the proposed defence and determine whether it is meritorious and raising triable issues.
This position of the law was upheld in CMC Holdings Limited v James Mumo Nzioki (2004) KLR, where the court held thus:
"The law is now well settled that in an application for setting aside ex parte judgment, the court must consider not only reasons why the defence was not filed or for that matter why the applicant failed to turn up for hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if a draft defence is annexed to the application, raises triable issues."
Respondent submissions
Whether there was inordinate delay by the Applicant in filing his Written Statement of Defense
The respondent submit that the delay in filing the Written Statement of Defence was not just inordinate, but intentional and purposed in taking the court in rounds of circles.,.that the Appellant's actions were obviously intentional.
The Appellant and his very advocate on record had participated in the proceedings of this court for the last 7 years, over and over this court has engaged them to file their written Statement of Defense but in vain, they have all along perfected in filing of applications after applications purpose of derailing the hearing of the main suit, and obviously avoid filing their Defence to the main suit.
Importantly, the lower court matter came up for hearing on 16th and 17th October 2024, the hearing never proceeded, the Appellant's Statement of Defense was not on record despite entering appearance vide his memorandum of appearance was back in Februa 2018. The Court adjourned the matter for the Applicant to file his Defense.
The Matter came up on 24th October 2024, within 7 days of the earlier hearings, this was to give room for the applicant to file his Statement of Defense, the same was not filed, the Advocate for the Applicant sought leave to file his statement of Defense, leave was granted, but nothing was filed, This matter came up on 14th November 2024, again for hearing.. The Applicant again did not have his Statement of Defense filed this in violation of the many directions and orders and leaves to file the same: the matter roceeded notwithstanding the said Statement of Defense.
Further, the Appellant elected to file a Notice of Preliminary Objection dated 12.11.2024, filed and served 24 hours to the hearing of the main suit on the grounds that the matter was Res-Judicate, an issue long determined by the then Hon.Orimba SPM. Directions were given and parties were to file necessary replies and submissions, the main matter however proceeded for hearing notwithstanding and considering this court had given leave to the Applicant to file his Statement of Defense but failed to do so.
On 26th November, 2024, the Appellant filed another application seeking this court’s leave to file and prosecute his statement of Defense, notwithstanding the fact that the matter had already proceeded for hearing and he had previously been granted leaves and directives to file his Statement of Defense but in vain.
They refer you to the case of Bayo Food Products Ltd v Elegand Freighters Ltd [2007] eKLR, where the court dismissed an application to extend time to file a defence after a delay of over ten years. The Court went further to state that the failure to file a defense by the Defendant was not inadvertent and neither can it be described as a bonafide mistake or a Mistake by an advocate.
The respondent submits that the Draft statement of Defense on record and as annexed to the Appellant’s Application dated 26th November 2024 as majorly reiterated in this appeal and the need to hear the suit afresh contained, they insist that the draft defence raises questions of law that are in the preliminary objection awaiting court’s determination.
The issues under the said Notice of Preliminary Objection and the Draft Statement of Defense, as annexed to the Appellant's Affidavit, are completely similar, so to say, the Draft Statement of Defense raises issues of Law and surrounding the therein mentioned cooperative Tribunal Decision under Tribunal Number 14/1990.
The respondent submits that in the event the court determines that the main suit as filed with this court is not barred by res judicata, the obvious outcome would be that the Tribunal case No.14/2024 has no bearing with the matter herein, thus said the, all the issues of law as in the Applicant's Draft statement of Defense will stand resolved.
They pray that this court finds for the plaintiffs and proceed and declare the property under share No. 142 as held with the 1st defendant is the property of Philip Wambua Mutulili.
Issue
1. Whether the refusal to allow the appellant to defend the suit occasioned an injustice which this Court ought to remedy.
Analysis
This being a first appeal, this Court is required to reconsider and re-evaluate the evidence and material before the trial court and arrive at its own independent conclusion, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses. This is the established principle in Selle v Associated Motor Boat Co. Ltd [1968] EA 123, which continues to guide first appellate courts.
The question is whether, in the circumstances of this case, the learned magistrate exercised his discretion judicially and whether the refusal to allow the appellant to defend the suit occasioned an injustice which this Court ought to remedy.
The discretion to set aside proceedings or orders resulting from default is a judicial discretion. The classical statement in Shah v Mbogo [1967] EA 116 is that the discretion exists to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not intended to assist a party who has deliberately sought to obstruct or delay the course of justice.
The same principle was considered by the Court of Appeal in CMC Holdings Ltd v James Mumo Nzioki [2004] KECA 143 (KLR). The Court held that the court should consider not only the reason for the failure to file a defence but also whether the proposed defence raises reasonable or triable issues. The Court of Appeal ultimately allowed the appeal and directed that the suit proceed as a defended suit.
In the present case, the appellant annexed a draft defence to his application. The record indicates that the proposed defence raises issues concerning the ownership of Share No. 142 and the previous proceedings relating to that share. The appellant also raised questions touching on the jurisdiction of the trial court and the alleged applicability of the doctrine of res judicata.
These are not frivolous matters. They go to the root of the dispute and, if ultimately established, could materially affect the determination of the suit.
However, the respondents have correctly pointed out that the appellant's default was substantial. The appellant entered appearance long after the suit had been instituted and thereafter did not file a defence despite several opportunities. The court record, as summarized in the submissions, indicates that the appellant was repeatedly called upon to regularize his position.
Nevertheless, delay, though important, does not determine the suit. The court must examine the circumstances as a whole, the nature of the proposed defence, the prejudice likely to be suffered by the opposing party and the possibility of compensating such prejudice through costs.
In Kotecha & Sons Ltd & another v Amalo & Company Ltd [2025] KECA 65 (KLR), the Court of Appeal reiterated that the discretion to set aside is intended to prevent injustice resulting from an excusable mistake, while recognizing that the discretion should not be employed to reward deliberate obstruction or delay.
The appellant seek to reopen the matter as issues raised before the subordinate court were not conclusively determined before the matter proceeded to judgment. He contends that his preliminary objection raising res judicata was not determined. The record placed before this Court indicates that the appellant had filed a preliminary objection and that, on 2nd October, 2019, the trial court dealt with the 1st defendant’s preliminary objection but did not conclusively determine the appellant's objection.
A preliminary objection, where properly raised, concerns a pure point of law capable of disposing of a suit without the necessity of evidence. The locus classicus remains Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where the East African Court of Appeal explained the nature and limits of a preliminary objection.
The appellant's further complaint that the dispute fell within the jurisdiction of the Co-operative Tribunal also raises a matter which, if properly established, could be dispositive of the proceedings. The question whether section 76 of the Co-operative Societies Act applies must, however, be determined from the pleadings and the factual circumstances of the dispute.
On prejudice, the Respondents (who are representatives of a deceased’s estate) have been in court since 2017. Further delay would prolong the litigation and deny them the fruits of any judgment.
The prejudice to the respondents can, in my view, be addressed by appropriate directions and an award of costs. The respondents will have the opportunity to oppose the defence, raise all lawful objections and fully participate in the determination of the dispute.
Nevertheless, Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities; it does not license the disregard of timelines and court orders so as to perpetuate delay. The overriding objective under the Civil Procedure Act equally emphasises the just, expeditious, proportionate and affordable resolution of disputes.
The learned magistrate considered the history of the matter, the length of the delay, the opportunities previously afforded, and the stage at which the application was brought.
I therefore find that the learned magistrate failed to sufficiently balance the appellant's procedural default against the substantive issues raised in the proposed defence and the interests of justice. The discretion was consequently exercised on an erroneous basis.
It is my finding that the appeal is meritorious and is hereby allowed.
It is ordered.
READ IN OPEN THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
COURT ASSISTANT DIANA
1. That the learned magistrate erred in law and fact by failing to appreciate the constitutional and statutory right to a fair hearing under Article 50(1) of the Constitution of Kenya, despite the Appellants’ genuine and reasonable explanation for the delay in filing the defence.
2. That the learned magistrate misdirected himself by placing undue emphasis on procedural technicalities, contrary to Article 159(2)(d) of the Constitution, which mandates courts to administer justice without undue regard to procedural technicalities.
3. That the learned magistrate erred in law and fact by failing to consider the prejudice that the Appellant would suffer if they were denied the opportunity to defend the suit on merit, thereby occasioning a miscarriage of justice.
4. That the learned magistrate failed to appreciate that the delay in filing the defence was occasioned by a bona fide mistake by the Appellants’ counsel, which mistake should not be visited upon the Appellant, especially where no deliberate effort to obstruct justice was demonstrated.
5. That the learned magistrate erred in law and fact by failing to exercise his discretion judiciously and in the interest of justice, particularly considering that the Respondents had not demonstrated any substantial prejudice that could not be compensated by an award of costs.
6. That the learned magistrate’s finding that the Appellants application was an abuse of the court process was erroneous, unwarranted, and not supported by the evidence before the court, particularly in light of the Appellants’ consistent efforts to regularize their position.
7. That the learned magistrate failed to give due regard to the overriding objective of the Civil Procedure Act, which requires courts to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes.
8. That the learned magistrate failed to recognize that the Appellant had participated in the proceedings, albeit without a defence on record, and that their intention to defend the suit was clear from their active involvement and prior applications.
9. That the learned magistrate failed to consider that the Appellants defence raises triable issues deserving to be heard and determined on merit, which would allow the court to resolve the dispute comprehensively and justly.
The Appellant prays that:
a) This Appeal be allowed.
b) The ruling delivered on 27th February, 2025, and all consequential orders arising therefrom, be set aside.
c) The Appellant be granted leave to file their defence out of time, and the defence be deemed as duly filed and served.
d) The costs of this appeal and the application in the lower court be awarded to the appellant.
Brief facts
This appeal arises from the judgment of Hon, S. A, Opande (PM) delivered on 22nd May, 2025 in Kangundo CMCC No. 165 of 2017. The Appellant, Alfred Wambua Muindi (suing as the personal representative of the Estate of Samuel Muindi Sila alias Muindi Kavungi alias Muindi Sila) appeals against the entire judgment.
During the trial court proceedings, the Appellant herein failed to file a Defence within the prescribed time.
The Appellant made both oral and formal applications for leave to file their Defence out of time which were both dismissed.
The matter proceeded to a full hearing, during which both the Plaintiff and the 1st Defendant closed their respective cases. The Appellant, having not filed a defence, was unable to tender any evidence, call any witnesses and subsequently barred by the court to participate in the hearing.
The Appellant herein, aggrieved by the judgement filed a Memorandum of Appeal dated 17th July 2025.
Appellant submissions
Whether the judgement delivered on 22nd May, 2025 should be set aside
Article 165(6) of the Constitution of Kenya 2010 grants the High Court supervisory jurisdiction over subordinate courts as well as over any person, body or authority exercising or judicial or quasi-judicial function.
Article 165(7) provides as follows: -
(7) For the purposes of clause (6) the High Court may call for the record of any proceeding before any subordinate court or person, body or authority referred to in clause(b), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
The appellant submits that should this court proceed and investigate the entirety of this impugned trial the following issues will remain apparent;
The trial court lacked jurisdiction to hear and determine the suit. The Plaintiffs in their amended plaint dated 29th October, 2020 make reference to the acquisition, sale, dispute and operations of the 1st Defendant with respect to share number 142 that is held with the 1st Defendant in the trial suit.
It is not in dispute that the main issue for determination in the trial suit between the parties therein referred to a share 142 held by the 1st Defendant Komarock Ranching and Farming Cooperative Society. This being a dispute regarding the ownership of a share in a cooperative society, by virtue of Section 76 of the Cooperatives Societies Act, this dispute ought to have been heard and determined by the Cooperatives Tribunal.
That the suit was Res judicata, secondly, the judgment of the trial court is irregular for res judicata as the issue of sale and purchase of share 142 in the 2"4 respondent had already been heard and determined previously in Kangundo Civil Case no. 33 of 1992 by Hon. Charo.
The Appellant then the 2nd Defendant in the trial suit filed a Notice of Preliminary Objection dated 18 March 2019 objecting to the trial court's proceedings as being barred for Res judicata. A perusal of the proceedings of the trial court and specifically the ruling of the trial court delivered on 2nd October 2019 which ought to have determined the Appellant's Preliminary Objection.
The said ruling only determined the 1st Defendant's Preliminary Objection and ignored the 2nd Defendant's Preliminary Objection. The court however in that ruling in its determination held as follows; I have also noted that the Plaintiff had already amended the Plaint removing share No. 142 from the pleadings. The issues that now remain can be dealt with at the main trial.
The trial suit was time barred and was filed without leave of court. The Judgement in Kangundo Civil Case No. 33 of 1992 it indicates that it was rendered in 30th September, 1992, this is also affirmed at paragraph 15 of the Plaintiff’s Re Amended Plaint dated 29th October, 2020. The present suit was therefore filed 25 years after entry of the judgement.
However, Section 27 and 28 of the Limitation of Actions Act, Order 37 Rule 6 of the Civil Procedure Rules, provides an avenue through which parties can seek extension and or enlargement of time to file suits out of time.
The Appellant submits that the proceedings in the trial court rendered the judgement of 22nd May 2025 irregular and bad in law. It is therefore in the interest of justice that the said judgement is nullified and set aside.
Whether the suit be remitted back to the trial court for hearing de novo and the appellant be allowed to file a defense
The Appellant herein was the 2nd Defendant in the trial suit. Prior to the judgment of 22.4 May 2025, the declaratory orders thereon and as is averred at paragraph 4 of the Re Amended the Estate of the Late Samuel Muindi Sila in which he is the administrator held the contested share no 142 1n the 1st Defendant.
The court proceedings record shows that this suit was commenced in 2017 and placed before the court on 13th November 2017, the Appellant entered appearance through the firm of Ndemo Mokaya on 20 February 2019 approximately 1 year and three months after the suit was filed.
Upon entry into these proceedings, the Appellant filed a Notice of Preliminary Objection for this suit for Res judicata. From the court records the ruling for the Appellants Preliminary Objection was to be issued vide the ruling dated 2nd October, 2019, the Appellant however reiterates that the said ruling did not render a determination on his Preliminary Objection.
From 2nd October 2019 when the fore stated ruling was issued the court proceedings bear record that the Plaintiff fixed a mention date for 29th July 2020 for the suit in the registry on 8th July 2020 approximately 7 months later. This matter ultimately came before Hon. Orimba on 7 October 2020 a year after it was last placed before him. On the said 7th October 2020 as the records will bear witness the Plaintiff had not complied with the court's direction in its ruling of 2nd October 2019 to file its amended Plaint 1 year later.
On 14th November, 2024 when the matter came up for hearing, counsel for the Appellant informed the court that there was never a pre-trial in respect of the matter and as such was not ready to proceed with the hearing as they had not yet filed their defence, The Counsel for the Appellant further notified the court that he had filed a preliminary Objection citing the matter was res judicata. Counsel further submitted to the court that to the best of his knowledge no pre-trial conference was done with respect to the suit.
The court retired and subsequently rendered a ruling on the following terms;
a) With respect to the Preliminary Objection the court directed that it would render a decision on the Preliminary Objection together with the judgment in the main suit depending on whether the Preliminary Objection succeeded or not.
The trial court record reflects the said ruling with respect to the Preliminary objection was not delivered.
The Appellant subsequently filed a Notice of Motion Application dated 26th November, 2024 seeking to set aside the proceedings of the suit on 14th November, 2024 and the Appellant be granted leave to file his defence out of time. In support of the Application, the Appellant attached a draft defence. The Appellant submits that the draft defence at paragraph 12 to 22 raised extremely pertinent and triable issues which the trial court ought to have allowed be ventilated and put through the test of evidence and cross examination.
Upon filing of submissions by the parties the trial court returned a ruling dated 27th February, 2025 dismissing the application.
The Appellant submits that it is trite law that when a court is faced with an application to set aside proceedings and/ or judgement to enable a party file a defence, such court is required among other factors to examine the proposed defence and determine whether it is meritorious and raising triable issues.
This position of the law was upheld in CMC Holdings Limited v James Mumo Nzioki (2004) KLR, where the court held thus:
"The law is now well settled that in an application for setting aside ex parte judgment, the court must consider not only reasons why the defence was not filed or for that matter why the applicant failed to turn up for hearing on the hearing date but also whether the applicant has reasonable defence which is usually referred as whether the defence if filed already or if a draft defence is annexed to the application, raises triable issues."
Respondent submissions
Whether there was inordinate delay by the Applicant in filing his Written Statement of Defense
The respondent submit that the delay in filing the Written Statement of Defence was not just inordinate, but intentional and purposed in taking the court in rounds of circles.,.that the Appellant's actions were obviously intentional.
The Appellant and his very advocate on record had participated in the proceedings of this court for the last 7 years, over and over this court has engaged them to file their written Statement of Defense but in vain, they have all along perfected in filing of applications after applications purpose of derailing the hearing of the main suit, and obviously avoid filing their Defence to the main suit.
Importantly, the lower court matter came up for hearing on 16th and 17th October 2024, the hearing never proceeded, the Appellant's Statement of Defense was not on record despite entering appearance vide his memorandum of appearance was back in Februa 2018. The Court adjourned the matter for the Applicant to file his Defense.
The Matter came up on 24th October 2024, within 7 days of the earlier hearings, this was to give room for the applicant to file his Statement of Defense, the same was not filed, the Advocate for the Applicant sought leave to file his statement of Defense, leave was granted, but nothing was filed, This matter came up on 14th November 2024, again for hearing.. The Applicant again did not have his Statement of Defense filed this in violation of the many directions and orders and leaves to file the same: the matter roceeded notwithstanding the said Statement of Defense.
Further, the Appellant elected to file a Notice of Preliminary Objection dated 12.11.2024, filed and served 24 hours to the hearing of the main suit on the grounds that the matter was Res-Judicate, an issue long determined by the then Hon.Orimba SPM. Directions were given and parties were to file necessary replies and submissions, the main matter however proceeded for hearing notwithstanding and considering this court had given leave to the Applicant to file his Statement of Defense but failed to do so.
On 26th November, 2024, the Appellant filed another application seeking this court’s leave to file and prosecute his statement of Defense, notwithstanding the fact that the matter had already proceeded for hearing and he had previously been granted leaves and directives to file his Statement of Defense but in vain.
They refer you to the case of Bayo Food Products Ltd v Elegand Freighters Ltd [2007] eKLR, where the court dismissed an application to extend time to file a defence after a delay of over ten years. The Court went further to state that the failure to file a defense by the Defendant was not inadvertent and neither can it be described as a bonafide mistake or a Mistake by an advocate.
The respondent submits that the Draft statement of Defense on record and as annexed to the Appellant’s Application dated 26th November 2024 as majorly reiterated in this appeal and the need to hear the suit afresh contained, they insist that the draft defence raises questions of law that are in the preliminary objection awaiting court’s determination.
The issues under the said Notice of Preliminary Objection and the Draft Statement of Defense, as annexed to the Appellant's Affidavit, are completely similar, so to say, the Draft Statement of Defense raises issues of Law and surrounding the therein mentioned cooperative Tribunal Decision under Tribunal Number 14/1990.
The respondent submits that in the event the court determines that the main suit as filed with this court is not barred by res judicata, the obvious outcome would be that the Tribunal case No.14/2024 has no bearing with the matter herein, thus said the, all the issues of law as in the Applicant's Draft statement of Defense will stand resolved.
They pray that this court finds for the plaintiffs and proceed and declare the property under share No. 142 as held with the 1st defendant is the property of Philip Wambua Mutulili.
Issue
1. Whether the refusal to allow the appellant to defend the suit occasioned an injustice which this Court ought to remedy.
Analysis
This being a first appeal, this Court is required to reconsider and re-evaluate the evidence and material before the trial court and arrive at its own independent conclusion, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses. This is the established principle in Selle v Associated Motor Boat Co. Ltd [1968] EA 123, which continues to guide first appellate courts.
The question is whether, in the circumstances of this case, the learned magistrate exercised his discretion judicially and whether the refusal to allow the appellant to defend the suit occasioned an injustice which this Court ought to remedy.
The discretion to set aside proceedings or orders resulting from default is a judicial discretion. The classical statement in Shah v Mbogo [1967] EA 116 is that the discretion exists to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not intended to assist a party who has deliberately sought to obstruct or delay the course of justice.
The same principle was considered by the Court of Appeal in CMC Holdings Ltd v James Mumo Nzioki [2004] KECA 143 (KLR). The Court held that the court should consider not only the reason for the failure to file a defence but also whether the proposed defence raises reasonable or triable issues. The Court of Appeal ultimately allowed the appeal and directed that the suit proceed as a defended suit.
In the present case, the appellant annexed a draft defence to his application. The record indicates that the proposed defence raises issues concerning the ownership of Share No. 142 and the previous proceedings relating to that share. The appellant also raised questions touching on the jurisdiction of the trial court and the alleged applicability of the doctrine of res judicata.
These are not frivolous matters. They go to the root of the dispute and, if ultimately established, could materially affect the determination of the suit.
However, the respondents have correctly pointed out that the appellant's default was substantial. The appellant entered appearance long after the suit had been instituted and thereafter did not file a defence despite several opportunities. The court record, as summarized in the submissions, indicates that the appellant was repeatedly called upon to regularize his position.
Nevertheless, delay, though important, does not determine the suit. The court must examine the circumstances as a whole, the nature of the proposed defence, the prejudice likely to be suffered by the opposing party and the possibility of compensating such prejudice through costs.
In Kotecha & Sons Ltd & another v Amalo & Company Ltd [2025] KECA 65 (KLR), the Court of Appeal reiterated that the discretion to set aside is intended to prevent injustice resulting from an excusable mistake, while recognizing that the discretion should not be employed to reward deliberate obstruction or delay.
The appellant seek to reopen the matter as issues raised before the subordinate court were not conclusively determined before the matter proceeded to judgment. He contends that his preliminary objection raising res judicata was not determined. The record placed before this Court indicates that the appellant had filed a preliminary objection and that, on 2nd October, 2019, the trial court dealt with the 1st defendant’s preliminary objection but did not conclusively determine the appellant's objection.
A preliminary objection, where properly raised, concerns a pure point of law capable of disposing of a suit without the necessity of evidence. The locus classicus remains Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where the East African Court of Appeal explained the nature and limits of a preliminary objection.
The appellant's further complaint that the dispute fell within the jurisdiction of the Co-operative Tribunal also raises a matter which, if properly established, could be dispositive of the proceedings. The question whether section 76 of the Co-operative Societies Act applies must, however, be determined from the pleadings and the factual circumstances of the dispute.
On prejudice, the Respondents (who are representatives of a deceased’s estate) have been in court since 2017. Further delay would prolong the litigation and deny them the fruits of any judgment.
The prejudice to the respondents can, in my view, be addressed by appropriate directions and an award of costs. The respondents will have the opportunity to oppose the defence, raise all lawful objections and fully participate in the determination of the dispute.
Nevertheless, Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities; it does not license the disregard of timelines and court orders so as to perpetuate delay. The overriding objective under the Civil Procedure Act equally emphasises the just, expeditious, proportionate and affordable resolution of disputes.
The learned magistrate considered the history of the matter, the length of the delay, the opportunities previously afforded, and the stage at which the application was brought.
I therefore find that the learned magistrate failed to sufficiently balance the appellant's procedural default against the substantive issues raised in the proposed defence and the interests of justice. The discretion was consequently exercised on an erroneous basis.
It is my finding that the appeal is meritorious and is hereby allowed.
It is ordered.
READ IN OPEN THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
COURT ASSISTANT DIANA