'Brief background;
1. The appellant filed a Notice of Motion Application at the lower court dated 6th April 2023 seeking an order to stay execution and set aside the Exparte Judgment delivered on 17th March 2023.
2. Subsequently a Ruling was delivered on 13th October 2023 which the Appellant takes issue with on the basis of the grounds as set out in the Appellant''s Memorandum of Appeal dated 19th October 2023.
3. The appeal before this court for determination is predicated on the said Memorandum of Appeal.
The Appellant’s Case;
4. It is his case that in the application for stay and setting aside dated 6th April, 2023 the Appellant had set out the reasons why he had not entered appearance and defence in the suit MCCC No. E2549 of 2021 in which he was named the 1st Defendant.
5. The Appellant, being the owner of the vehicle involved in an accident with the Respondent herein, had set out the reasons why in the said application for stay of ex-parte judgment the reasons why he had not entered appearance and defence in the suit against him and his driver.
6. He had also sworn a Supporting Affidavit to the application. The Appellant had averred that he was a victim of Invesco Insurance Company which had insured the motor-vehicle. The company appointed a law firm to act for him in the suit in the lower court and even charged him “excess” fee for that purpose and instructed Bench & Co. Advocates to defend the suit.
7. Appellant had produced evidence to support his averment a copy of the letter instructing Bench & Co. Advocates were not disputed by the Respondent.
8. The Appellant had demonstrated that, it was not due to indolence or lack of due diligence that an ex-parte judgment was entered and that he only became aware of the state of affairs when he received a letter from Respondent’s advocates informing him of the ex-parte judgment. It is his case that it is at this point he discovered that the Insurance Company had never followed up the matter.
9. The Respondent had filed a Replying Affidavit and argued that the Appellant had himself been served.
10. Respondent did not dispute that the company had informed the Appellant it would represent him in the suit nor did the Respondent dispute that she had served the Insurance Company as well with the court process.
11. The explanation offered by the Appellant was not only undisputed, it was entirely credible, reasonable, plausible and in our humble view, good basis for granting the application and setting aside the ex-parte judgment. The lower court had the discretion to allow the application.
12. The learned Senior Resident Magistrate in the ruling aforesaid said the Appellant was blaming the negligence of his advocates. He argues that this was not the case as the advocates were instructed by the Insurance Company.
13. It is his case that Order 10 Rule 11 Civil Procedure Rules empowers a court to grant such an application.
14. The application has been brought without delay and each case to be decided by its own merit.
15. Reliance is placed in the case of Shah -vs- Mbogo [1967] EA 116 where it was held that the discretion in such applications should be exercised to avoid injustice, but not to assist a person who is deliberately sought to obstruct or delay justice.
The Respondents Case;
16. The Respondent opposes the Application and argues that the ruling was a well-reasoned/thought out determination.
17. The Respondent reiterates and relies on her Replying Affidavit sworn by herself on 28th July 2023 & her Written Submissions dated 5th September 2023 on the subject Motion.
18. It was undisputed that the Appellant expressly confirmed in his Motion, being served with Demand Letter prior to filing Suit, Summons to Enter Appearance & the Plaint Bundle & further that he (appellant) appraised their insurers who appointed the firm of Bench & Co. Advocates & he visited the said law firm.
19. In that regard, being the principal party (Defendant/Tort Feasor) sued, it was incumbent upon him to follow up with the said Counsel appointed to Defend him as well as his insurers to ensure Appearance was entered and Defence was filed.
20. He shouldn''t have rested on his laurels and gone to sleep as he did only to wake up with the subject Notice of Motion a Whole One (1) Year later.
21. The Court found favour with the Respondent''s position that the Appellant''s delay was inexcusable & indeed upheld the maxim that Equity aids the vigilant not the indolent.
22. This meant that the Appellant was very much aware where he ought to go to follow up on the Entry of Appearance, the filing of his Defence & indeed the conduct of that Defence (the Law office of Bench & Co. Advocates).
23. The Appellant also had the fallback position of pursuing and enforcing the matter of his Defence in the subject Primary Suit with his insurers.
24. This is what the Appellant ought to have done but failed to. The presiding Magistrate actually noted this position at paragraph 1 Pg 2 of the subject ruling (pg. 30 of the ROA) when he stated “....that the Applicant admits that he knew of the existence of the suit hi the Application. The Applicant further indicated that the Applicant had a responsibility of ensuring that they entered appearance and consequently filed a Defence in the matter."
25. The Learned Trial Magistrate at paragraph 3 Pg 2 of the subject ruling (pg. 30 of the ROA) stated "I am convinced that the Applicant at that point had reason to believe that the firm of Bench & Co. Advocates would take up the matter and file a Defence on his behalf however the applicant ought to have followed up with his advocate to ensure that his case was being attended to."
26. Reliance is placed in the case of Prime Bank Ltd vs Paul Otieno Nyamodi (2014) eKLR where it was aptly stated:
“Ordinarily, the court will not set aside or vary interlocutory judgment because it would be essentially be setting back the Plaintiffs progress in prosecuting its case causing it to suffer prejudice. The court must therefore be satisfied that the defendant has offered a very plausible explanation as to why he has failed to file his memorandum of Appearance and Defence within the prescribed period under the Civil Procedure Rules, 2010 before such judgment can be set aside and/or varied”
27. The trial court relied on The Board of Management St. Augustine Secondary School v Chambalili Trading Co. Ltd (2021) eKLR
“The Appellant in this appeal has totally failed to convince this court that it had a good reason or valid basis for the delay and in the absence of a good reason obviously the learned trial magistrate was right to End that there were no sufficient grounds for him to exercise his discretion in favour of the applicant"
28. The Court of Appeal Case — MBOGO VS SHAH (1968) EA 93 that held;
“the discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay justice”
29. The Respondent refers to the Appellant''s indolence and indifference in the face of the suit at the lower court that Respondent was diligently pursuing; his failure to follow up and ensure the suit was actually defended.
30. The trial court was also guided by the case of Habo Agencies Ltd v Wilfred Odhiambo Musingo (2015) eKLR where it was stated thus:
“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”
31. The Appellant clearly has failed to give a plausible reason for failing to ensure Appearance was entered and Defence filed within the prescribed period and it is inexcusable that the default persisted for over 1 year till he woke up with the instant dismissed application on receipt of the Judgment Notice.
32. It was also the Respondent''s unshakeable position in her Replying Affidavit that the subject dismissed application was also rendered incurably and irretrievably defective due to the Appellant''s failure to annex a Draft Defence, a position that has been numerously affirmed in many decided cases such as: SMR Ltd Vs Michael Ezra Mulwooya (2019) eKLR where the Leaned Justice W. A Okwany held at page 2 thus:
“Needless to say, the existence of a defence to a plaint is one of the key considerations to an application to set aside a default judgement. Courts have taken position that failure to annex a draft defence to an application to set aside a default judgment is fatal to such an application.”
33. Harun Rashid Khator suing as the Representative of Rashid Khator (Deceased) Vs Sudi Hamisi & 11 Others (2014) eKLR where Learned Justice Angote held at page 4 thus:
“The failure to annex a draft Defence on an application to set aside a regular ex-parte judgment is fatal to such an Application. In the circumstances, I End and hold that the Application is a nonstarter on that ground alone”
34. In Nelly Wanjiru Njenga vs Robinson Maina & 3 Others (2021) eKLR at page 5 with the holding:
“Therefore, it follows that there is a regular Judgment on record. However, this may have not been fatal to the Applicants had produced a Draft Defence for the Court to establish whether the said Draft Defence raises a triable issue. Failure to file a draft Defence means that the Court cannot make a determination on whether there is merit or even a need of setting aside the Judgment. The Court finds and holds that the Applicant has not met the threshold to warrant the Court exercise its discretion and set aside the Ex Parte Judgment”
35. In Laljibhimji Shangani Builders & Contractors — vs- City Council of Nairobi (2012) eKLR where Justice J. V. Odunga emphatically stated:
“A party who without any justification decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been offered for failure to observe the rules of the procedure the Court may well be entitled to conclude that the failure to comply therewith was deliberate.”
36. It is its case that the judicially exercised his discretion in considering the Appellant''s subject dismissed application and he demonstrated in his impugned Ruling that he did so within the confines and indeed guided by applicable law & precedent.
37. The fact that the Appellant''s application was declined does not mean that Justice was not done.
Analysis and Determination;
38. The issue for determination is whether the appeal has merit.
39. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
40. In Wachira Karani vs. Bildad Wachira (2016) eKLR as was quoted in the case of David Gicheru v Gicheha Farms Limited & another [2020] eKLR the Court held that: -
“The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”
41. In Karinga Gaciani & 11 Others v Ndege Kabibi Kimanga & Agnes Wangechi the Supreme court said that it is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.
42. As held in Savings and Loans Ltd V Susan Wanjiru Muritu HCCC No. 397 of 2002;
“It is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour, is an indictment of the defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgement that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant.”
43. The Court of Appeal in Kariuki v Wangeci & 7 others (Civil Application E250 of 2023) [2024] KECA 1692 had the following to say;
“On behalf of the respondent, reliance was placed on the authorities in Rajesh Rughani v Fifty Investments Limited & Another [2016] eKLR for the proposition that it is not enough to blame previous counsel on record without an explanation as to the action taken by the litigant to show that he did not condone or collude in the delay; Paul Makokha Okoiti v Equity Bank & Attorney General [2016] eKLR to highlight the position that self- representation is not a panacea or licenceto demand that one must get what he asks; and Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR to highlight the need to respect the rules and timelines.
44. In James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) it was held:
“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another o Shah (supra), Patel v E.A. Cargo Handling Services Ltd (1975) EA 75.”
45. The applicant who was the owner of the motor vehicle the subject of the accident does not explain where he was for a whole year. The delay was not only unexplained, it was inordinate and unacceptable.
46. He was aware of the fact that the suit existed and that his insurer had engaged a lawyer for him.
47. In the case of Choka & another v Nkonge (Civil Appeal E988 of 2022) [2024] KEHC the court opined in this manner;
“I associate with the holding of Kimaru J in Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No 397 of 2002 where he pronounced thus; ‘Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate''s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour is an indictment on the defendant.”
48. The applicant did not bother to follow up his case with his lawyer. He did not file a draft defence that would have helped the court determine whether the same raised triable issues.
49. The court has been left guessing.
Determination:
50. The appeal lacks merit.
Order:
The appeal is dismissed with costs.
Dated, signed and delivered at Nairobi this 28th day of October, 2025.
'
1. The appellant filed a Notice of Motion Application at the lower court dated 6th April 2023 seeking an order to stay execution and set aside the Exparte Judgment delivered on 17th March 2023.
2. Subsequently a Ruling was delivered on 13th October 2023 which the Appellant takes issue with on the basis of the grounds as set out in the Appellant''s Memorandum of Appeal dated 19th October 2023.
3. The appeal before this court for determination is predicated on the said Memorandum of Appeal.
The Appellant’s Case;
4. It is his case that in the application for stay and setting aside dated 6th April, 2023 the Appellant had set out the reasons why he had not entered appearance and defence in the suit MCCC No. E2549 of 2021 in which he was named the 1st Defendant.
5. The Appellant, being the owner of the vehicle involved in an accident with the Respondent herein, had set out the reasons why in the said application for stay of ex-parte judgment the reasons why he had not entered appearance and defence in the suit against him and his driver.
6. He had also sworn a Supporting Affidavit to the application. The Appellant had averred that he was a victim of Invesco Insurance Company which had insured the motor-vehicle. The company appointed a law firm to act for him in the suit in the lower court and even charged him “excess” fee for that purpose and instructed Bench & Co. Advocates to defend the suit.
7. Appellant had produced evidence to support his averment a copy of the letter instructing Bench & Co. Advocates were not disputed by the Respondent.
8. The Appellant had demonstrated that, it was not due to indolence or lack of due diligence that an ex-parte judgment was entered and that he only became aware of the state of affairs when he received a letter from Respondent’s advocates informing him of the ex-parte judgment. It is his case that it is at this point he discovered that the Insurance Company had never followed up the matter.
9. The Respondent had filed a Replying Affidavit and argued that the Appellant had himself been served.
10. Respondent did not dispute that the company had informed the Appellant it would represent him in the suit nor did the Respondent dispute that she had served the Insurance Company as well with the court process.
11. The explanation offered by the Appellant was not only undisputed, it was entirely credible, reasonable, plausible and in our humble view, good basis for granting the application and setting aside the ex-parte judgment. The lower court had the discretion to allow the application.
12. The learned Senior Resident Magistrate in the ruling aforesaid said the Appellant was blaming the negligence of his advocates. He argues that this was not the case as the advocates were instructed by the Insurance Company.
13. It is his case that Order 10 Rule 11 Civil Procedure Rules empowers a court to grant such an application.
14. The application has been brought without delay and each case to be decided by its own merit.
15. Reliance is placed in the case of Shah -vs- Mbogo [1967] EA 116 where it was held that the discretion in such applications should be exercised to avoid injustice, but not to assist a person who is deliberately sought to obstruct or delay justice.
The Respondents Case;
16. The Respondent opposes the Application and argues that the ruling was a well-reasoned/thought out determination.
17. The Respondent reiterates and relies on her Replying Affidavit sworn by herself on 28th July 2023 & her Written Submissions dated 5th September 2023 on the subject Motion.
18. It was undisputed that the Appellant expressly confirmed in his Motion, being served with Demand Letter prior to filing Suit, Summons to Enter Appearance & the Plaint Bundle & further that he (appellant) appraised their insurers who appointed the firm of Bench & Co. Advocates & he visited the said law firm.
19. In that regard, being the principal party (Defendant/Tort Feasor) sued, it was incumbent upon him to follow up with the said Counsel appointed to Defend him as well as his insurers to ensure Appearance was entered and Defence was filed.
20. He shouldn''t have rested on his laurels and gone to sleep as he did only to wake up with the subject Notice of Motion a Whole One (1) Year later.
21. The Court found favour with the Respondent''s position that the Appellant''s delay was inexcusable & indeed upheld the maxim that Equity aids the vigilant not the indolent.
22. This meant that the Appellant was very much aware where he ought to go to follow up on the Entry of Appearance, the filing of his Defence & indeed the conduct of that Defence (the Law office of Bench & Co. Advocates).
23. The Appellant also had the fallback position of pursuing and enforcing the matter of his Defence in the subject Primary Suit with his insurers.
24. This is what the Appellant ought to have done but failed to. The presiding Magistrate actually noted this position at paragraph 1 Pg 2 of the subject ruling (pg. 30 of the ROA) when he stated “....that the Applicant admits that he knew of the existence of the suit hi the Application. The Applicant further indicated that the Applicant had a responsibility of ensuring that they entered appearance and consequently filed a Defence in the matter."
25. The Learned Trial Magistrate at paragraph 3 Pg 2 of the subject ruling (pg. 30 of the ROA) stated "I am convinced that the Applicant at that point had reason to believe that the firm of Bench & Co. Advocates would take up the matter and file a Defence on his behalf however the applicant ought to have followed up with his advocate to ensure that his case was being attended to."
26. Reliance is placed in the case of Prime Bank Ltd vs Paul Otieno Nyamodi (2014) eKLR where it was aptly stated:
“Ordinarily, the court will not set aside or vary interlocutory judgment because it would be essentially be setting back the Plaintiffs progress in prosecuting its case causing it to suffer prejudice. The court must therefore be satisfied that the defendant has offered a very plausible explanation as to why he has failed to file his memorandum of Appearance and Defence within the prescribed period under the Civil Procedure Rules, 2010 before such judgment can be set aside and/or varied”
27. The trial court relied on The Board of Management St. Augustine Secondary School v Chambalili Trading Co. Ltd (2021) eKLR
“The Appellant in this appeal has totally failed to convince this court that it had a good reason or valid basis for the delay and in the absence of a good reason obviously the learned trial magistrate was right to End that there were no sufficient grounds for him to exercise his discretion in favour of the applicant"
28. The Court of Appeal Case — MBOGO VS SHAH (1968) EA 93 that held;
“the discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay justice”
29. The Respondent refers to the Appellant''s indolence and indifference in the face of the suit at the lower court that Respondent was diligently pursuing; his failure to follow up and ensure the suit was actually defended.
30. The trial court was also guided by the case of Habo Agencies Ltd v Wilfred Odhiambo Musingo (2015) eKLR where it was stated thus:
“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”
31. The Appellant clearly has failed to give a plausible reason for failing to ensure Appearance was entered and Defence filed within the prescribed period and it is inexcusable that the default persisted for over 1 year till he woke up with the instant dismissed application on receipt of the Judgment Notice.
32. It was also the Respondent''s unshakeable position in her Replying Affidavit that the subject dismissed application was also rendered incurably and irretrievably defective due to the Appellant''s failure to annex a Draft Defence, a position that has been numerously affirmed in many decided cases such as: SMR Ltd Vs Michael Ezra Mulwooya (2019) eKLR where the Leaned Justice W. A Okwany held at page 2 thus:
“Needless to say, the existence of a defence to a plaint is one of the key considerations to an application to set aside a default judgement. Courts have taken position that failure to annex a draft defence to an application to set aside a default judgment is fatal to such an application.”
33. Harun Rashid Khator suing as the Representative of Rashid Khator (Deceased) Vs Sudi Hamisi & 11 Others (2014) eKLR where Learned Justice Angote held at page 4 thus:
“The failure to annex a draft Defence on an application to set aside a regular ex-parte judgment is fatal to such an Application. In the circumstances, I End and hold that the Application is a nonstarter on that ground alone”
34. In Nelly Wanjiru Njenga vs Robinson Maina & 3 Others (2021) eKLR at page 5 with the holding:
“Therefore, it follows that there is a regular Judgment on record. However, this may have not been fatal to the Applicants had produced a Draft Defence for the Court to establish whether the said Draft Defence raises a triable issue. Failure to file a draft Defence means that the Court cannot make a determination on whether there is merit or even a need of setting aside the Judgment. The Court finds and holds that the Applicant has not met the threshold to warrant the Court exercise its discretion and set aside the Ex Parte Judgment”
35. In Laljibhimji Shangani Builders & Contractors — vs- City Council of Nairobi (2012) eKLR where Justice J. V. Odunga emphatically stated:
“A party who without any justification decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been offered for failure to observe the rules of the procedure the Court may well be entitled to conclude that the failure to comply therewith was deliberate.”
36. It is its case that the judicially exercised his discretion in considering the Appellant''s subject dismissed application and he demonstrated in his impugned Ruling that he did so within the confines and indeed guided by applicable law & precedent.
37. The fact that the Appellant''s application was declined does not mean that Justice was not done.
Analysis and Determination;
38. The issue for determination is whether the appeal has merit.
39. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
40. In Wachira Karani vs. Bildad Wachira (2016) eKLR as was quoted in the case of David Gicheru v Gicheha Farms Limited & another [2020] eKLR the Court held that: -
“The fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…”
41. In Karinga Gaciani & 11 Others v Ndege Kabibi Kimanga & Agnes Wangechi the Supreme court said that it is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.
42. As held in Savings and Loans Ltd V Susan Wanjiru Muritu HCCC No. 397 of 2002;
“It is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour, is an indictment of the defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgement that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant.”
43. The Court of Appeal in Kariuki v Wangeci & 7 others (Civil Application E250 of 2023) [2024] KECA 1692 had the following to say;
“On behalf of the respondent, reliance was placed on the authorities in Rajesh Rughani v Fifty Investments Limited & Another [2016] eKLR for the proposition that it is not enough to blame previous counsel on record without an explanation as to the action taken by the litigant to show that he did not condone or collude in the delay; Paul Makokha Okoiti v Equity Bank & Attorney General [2016] eKLR to highlight the position that self- representation is not a panacea or licenceto demand that one must get what he asks; and Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR to highlight the need to respect the rules and timelines.
44. In James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) it was held:
“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another o Shah (supra), Patel v E.A. Cargo Handling Services Ltd (1975) EA 75.”
45. The applicant who was the owner of the motor vehicle the subject of the accident does not explain where he was for a whole year. The delay was not only unexplained, it was inordinate and unacceptable.
46. He was aware of the fact that the suit existed and that his insurer had engaged a lawyer for him.
47. In the case of Choka & another v Nkonge (Civil Appeal E988 of 2022) [2024] KEHC the court opined in this manner;
“I associate with the holding of Kimaru J in Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No 397 of 2002 where he pronounced thus; ‘Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate''s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour is an indictment on the defendant.”
48. The applicant did not bother to follow up his case with his lawyer. He did not file a draft defence that would have helped the court determine whether the same raised triable issues.
49. The court has been left guessing.
Determination:
50. The appeal lacks merit.
Order:
The appeal is dismissed with costs.
Dated, signed and delivered at Nairobi this 28th day of October, 2025.
'