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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI HIGH COURT COMMERICAL AND TAX DIVISION
CIVIL APPEAL NO. E735 OF 2023
EDWIN MWANGI KABIRU…………….…………………..APPELLANT
VERUS
MOSES NJOROGE MWANGI
T/A DATALYNCS SYSTEMS E.A LIMITED…………. RESPONDENT
( Being an appeal from the judgement delivered by Honourable J.W. MUNENE Senior Resident Magistrate in Milimani Small claims Court SCCCOMM No. E464 of 2023 delivered on 7 th July 2023)
ARISING FROM
MOSES NJOROGE MWANGI
T/A DATALYNCS SYSTEMS E.A LIMITED……………..PLAINTIFF
VERSUS
EDWIN MWANGI KABIRU………….. …….………….. DEFENDANT
JUDGMENT
INTRODUCTION
This appeal arises from the ruling/order of Hon. J.W MUNENE, Senior Resident Magistrate/Adjudicator dated 7th July 2023, wherein she refused to set aside the interlocutory judgment entered against the appellant and decree issued entered as against the appellant and the resultant decree issued therefrom.
The respondent had filed the primary suit as against the Appellant seeking refund of a sum of Kshs 550,000/= they had lent the appellant. Subsequently the appellant was served on two occasions with the pleadings and mention notice through his phone Number 0780084809 as confirmed by the affidavit of service dated 21.02.2023 and 22.02.2023. The primary suit, then came up for direction on 06.03.2023 and interlocutory judgment was entered against the appellant in default entering appearance and/or filing his statement of defence.
Upon realising that, interlocutory judgment had been passed as against him, the appellant instructed counsel, who filed his Application dated 03.05.2023 seeking to set aside the said interlocutory judgment and upon considering the same on merit, the trial Magistrate declined to do so and dismissed the said application on the basis that it had no-merit. Being wholly dissatisfied as against the said Ruling/Order the appellant did file this appeal and raised the following grounds of appeal;
The learned magistrate erred and misdirected herself in law and in fact in dismissing the Appellants application to set aside Ex parte default judgment.
The learned magistrate erred and misdirected herself in law and in fact in denying the Appellant an opportunity to put in a valid defence and the right to be heard.
The learned magistrate erred and misdirected herself in law and in fact in failing to apricate that the draft defence raises triable issues that the entire claim is statutory time barred.
The learned magistrate erred in law and in fact in failing to apricate that the evidence on record did not support the decision she arrived at.
That the learned Magistrate erred and misdirected herself in law and in fact in failing to apricate that the Appellant can only be locked out of hearing as a last resort.
The learned Magistrate erred and misdirected herself in law and in fact in failing to appreciate that setting aside the ex parte default judgment would not occasion injustice to the Respondent.
The learned Magistrate erred in law and misdirected herself in law and in fact in failing to act fairly and failed to appreciate that the appellant draft defence had established a prima facie case which raised triable issues with very high chances of success. .
That the learned Magistrate erred and misdirected himself in law and in fact in failing to appricate and weigh the appellants evidence that the suit was time barred by limitation of Action Act.
ANALYSIS & DETERMINATION
This court has examined the Record of Appeal, the grounds of appeal and given due consideration to the submissions by the parties’ respective Counsel. It is trite law, that the appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403, where Kneller JA & Hancox Ag JJA held that-
“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”
The only issue for determination in this appeal is whether the trial Magistrate correctly considered and applied the principles applicable in set aside interlocutory judgment.
It is trite law, that Courts have the discretionary power to set aside Ex parte judgment with the main aim being that justice should prevail. The Court ought to look at the draft defence to the plaint and accompanying witness statements before proceeding to give its ruling as to whether the applicant’s defence raises triable issues. In Patel -v- E.A. Handling Services Ltd (1974) EZ 75 and Tree Shade Motor Ltd -v- D.T. Dobie Co. Ltd CA 38 of 1998 and Mania -v-Muriuki (1984) KLR 407 the courts held that the discretion of the court should be exercised to avoid injustice or hardship resulting from accident, inadvertence and excusable mistake or error.
In the case Mohamed & Another -v- Shoka (1990) KLR 463 the Court set out the tenets a court should consider in entering interlocutory judgment to include:
Whether there is a regular judgment;
Whether there is a defence on merit;
Whether there is a reasonable explanation for any delay;
Whether there would be any prejudice.
The issue of regular judgment was addressed in the case Mwala -v- Kenya Bureau of Standards EA LR (2001) 1 EA 148, where the court stated;
“to all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte judgment. Where the judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justice for a court should never countenance an irregular judgment on its record.”
Order 5 rule 8(1) of the civil procedure rules, 2010 provides that;
“Where it is practical, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.
Order 5 of the Civil Procedure Rules was amended by the enactment of the Civil Procedure (Amendment) Rules, 2020 contained in legal Notice No 22 in Kenya Gazette Supplementary No 11 dated 26 th February 2020 and introduced Order 5 Rule 22B & C , which provides for service by electronic mail and enabled massaging Applications. The said provision provides that;
Mobile -enabled messaging Applications
(Order 5, Rule 22C)
Summons maybe sent by Mobile-enabled massaging Application to the defendants last known and used Telephone Number.
Summons shall be deemed served on the day which it was sent; if it is sent within the official business hours on a business day in the jurisdiction sent, or and if it is sent outside of business hours on the day that is not a business day it shall be considered to have been served on the business day Subsequent.
Service shall be deemed to have been effected when mobile enabled massaging services when the sender receives a delivery receipt.
An officer of the court who is duly authorised to effect service shall file and Affidavit of service attaching the delivery receipt confirming service.
Considering the parameters discussed above, I do find that the Application to set aside the Ex parte default judgment was filed within 60 days and that was not inordinate.
Secondly the Appellant was served through his phone Number 0780-084-809 on two occasions and in both instances, the affidavit of service was filed to confirm the said service. The Ex parte default judgment entered as against the Appellant on 06.03.2023 was thus regular.
On whether the proposed defence filed raises a triable issue, the Appellant averred that the trial Magistrate erred to hold that the response contained mere denials, yet they had denied the claim and specially raised the defence that the claim was time barred at paragraph 5 of the said defence. The trial Magistrate had ignored to consider the issues raised in their defence and thus made an error, when she stated that the defence filed consisted of mere denials.
The Appellant’s contention is correct that the trial Magistrate erred in finding that the proposed defence consisted of mere denial, yet there was a triable issue raised as to whether the claim filed was time barred or not. In Tree Shade Motors limited V D.T. Dobie Company (K) Ltd & Another (1998) , the Court of Appeal held that;
“ ……… Where an Ex parte judgment was lawfully entered the court should look at the draft defence to see if it contained a valid or reasonable defence.”
In Patel V East African Cargo Handling Services (1974) EA 75 , the court observed that;
“I agree that where it is regular judgment 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 not go trial for adjudication.”
Accordingly, it is important that the Appellant be allowed to ventilate the issues raised in his defence even if the said issues might or might not succeed.
DISPOSITION
The upshot is that this Appeal has merit. The ruling/Order of Hon J.W. Munene, Senior Resident Magistrate dated 7 th July 2023 and delivered in MILLIMANI SCC COMM E464 OF 2023 is hereby set-aside and the Appellants Application dated 5 th May 2023 is allowed in terms of prayer (c) and (d) thereof.
The Appellant is granted leave to file and serve their statement of defence within the next 14 days from the date of delivery of this Judgement.
Thrown away costs of the said Application is taxed at Kshs 25,000/= payable to the respondent herein within the next 30 days from the delivery of this judgment.
Each party will bear their own costs of this Appeal.
It is so ordered.
Judgment written, dated and signed at Marsabit this ………day of NOVEMBER 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this ………day of NOVEMBER, 2025.
In the presence of;
………………………………….for Appellant
………………………………….for Respondent
………………………………….Court Assistant
'
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI HIGH COURT COMMERICAL AND TAX DIVISION
CIVIL APPEAL NO. E735 OF 2023
EDWIN MWANGI KABIRU…………….…………………..APPELLANT
VERUS
MOSES NJOROGE MWANGI
T/A DATALYNCS SYSTEMS E.A LIMITED…………. RESPONDENT
( Being an appeal from the judgement delivered by Honourable J.W. MUNENE Senior Resident Magistrate in Milimani Small claims Court SCCCOMM No. E464 of 2023 delivered on 7 th July 2023)
ARISING FROM
MOSES NJOROGE MWANGI
T/A DATALYNCS SYSTEMS E.A LIMITED……………..PLAINTIFF
VERSUS
EDWIN MWANGI KABIRU………….. …….………….. DEFENDANT
JUDGMENT
INTRODUCTION
This appeal arises from the ruling/order of Hon. J.W MUNENE, Senior Resident Magistrate/Adjudicator dated 7th July 2023, wherein she refused to set aside the interlocutory judgment entered against the appellant and decree issued entered as against the appellant and the resultant decree issued therefrom.
The respondent had filed the primary suit as against the Appellant seeking refund of a sum of Kshs 550,000/= they had lent the appellant. Subsequently the appellant was served on two occasions with the pleadings and mention notice through his phone Number 0780084809 as confirmed by the affidavit of service dated 21.02.2023 and 22.02.2023. The primary suit, then came up for direction on 06.03.2023 and interlocutory judgment was entered against the appellant in default entering appearance and/or filing his statement of defence.
Upon realising that, interlocutory judgment had been passed as against him, the appellant instructed counsel, who filed his Application dated 03.05.2023 seeking to set aside the said interlocutory judgment and upon considering the same on merit, the trial Magistrate declined to do so and dismissed the said application on the basis that it had no-merit. Being wholly dissatisfied as against the said Ruling/Order the appellant did file this appeal and raised the following grounds of appeal;
The learned magistrate erred and misdirected herself in law and in fact in dismissing the Appellants application to set aside Ex parte default judgment.
The learned magistrate erred and misdirected herself in law and in fact in denying the Appellant an opportunity to put in a valid defence and the right to be heard.
The learned magistrate erred and misdirected herself in law and in fact in failing to apricate that the draft defence raises triable issues that the entire claim is statutory time barred.
The learned magistrate erred in law and in fact in failing to apricate that the evidence on record did not support the decision she arrived at.
That the learned Magistrate erred and misdirected herself in law and in fact in failing to apricate that the Appellant can only be locked out of hearing as a last resort.
The learned Magistrate erred and misdirected herself in law and in fact in failing to appreciate that setting aside the ex parte default judgment would not occasion injustice to the Respondent.
The learned Magistrate erred in law and misdirected herself in law and in fact in failing to act fairly and failed to appreciate that the appellant draft defence had established a prima facie case which raised triable issues with very high chances of success. .
That the learned Magistrate erred and misdirected himself in law and in fact in failing to appricate and weigh the appellants evidence that the suit was time barred by limitation of Action Act.
ANALYSIS & DETERMINATION
This court has examined the Record of Appeal, the grounds of appeal and given due consideration to the submissions by the parties’ respective Counsel. It is trite law, that the appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403, where Kneller JA & Hancox Ag JJA held that-
“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”
The only issue for determination in this appeal is whether the trial Magistrate correctly considered and applied the principles applicable in set aside interlocutory judgment.
It is trite law, that Courts have the discretionary power to set aside Ex parte judgment with the main aim being that justice should prevail. The Court ought to look at the draft defence to the plaint and accompanying witness statements before proceeding to give its ruling as to whether the applicant’s defence raises triable issues. In Patel -v- E.A. Handling Services Ltd (1974) EZ 75 and Tree Shade Motor Ltd -v- D.T. Dobie Co. Ltd CA 38 of 1998 and Mania -v-Muriuki (1984) KLR 407 the courts held that the discretion of the court should be exercised to avoid injustice or hardship resulting from accident, inadvertence and excusable mistake or error.
In the case Mohamed & Another -v- Shoka (1990) KLR 463 the Court set out the tenets a court should consider in entering interlocutory judgment to include:
Whether there is a regular judgment;
Whether there is a defence on merit;
Whether there is a reasonable explanation for any delay;
Whether there would be any prejudice.
The issue of regular judgment was addressed in the case Mwala -v- Kenya Bureau of Standards EA LR (2001) 1 EA 148, where the court stated;
“to all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte judgment. Where the judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justice for a court should never countenance an irregular judgment on its record.”
Order 5 rule 8(1) of the civil procedure rules, 2010 provides that;
“Where it is practical, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.
Order 5 of the Civil Procedure Rules was amended by the enactment of the Civil Procedure (Amendment) Rules, 2020 contained in legal Notice No 22 in Kenya Gazette Supplementary No 11 dated 26 th February 2020 and introduced Order 5 Rule 22B & C , which provides for service by electronic mail and enabled massaging Applications. The said provision provides that;
Mobile -enabled messaging Applications
(Order 5, Rule 22C)
Summons maybe sent by Mobile-enabled massaging Application to the defendants last known and used Telephone Number.
Summons shall be deemed served on the day which it was sent; if it is sent within the official business hours on a business day in the jurisdiction sent, or and if it is sent outside of business hours on the day that is not a business day it shall be considered to have been served on the business day Subsequent.
Service shall be deemed to have been effected when mobile enabled massaging services when the sender receives a delivery receipt.
An officer of the court who is duly authorised to effect service shall file and Affidavit of service attaching the delivery receipt confirming service.
Considering the parameters discussed above, I do find that the Application to set aside the Ex parte default judgment was filed within 60 days and that was not inordinate.
Secondly the Appellant was served through his phone Number 0780-084-809 on two occasions and in both instances, the affidavit of service was filed to confirm the said service. The Ex parte default judgment entered as against the Appellant on 06.03.2023 was thus regular.
On whether the proposed defence filed raises a triable issue, the Appellant averred that the trial Magistrate erred to hold that the response contained mere denials, yet they had denied the claim and specially raised the defence that the claim was time barred at paragraph 5 of the said defence. The trial Magistrate had ignored to consider the issues raised in their defence and thus made an error, when she stated that the defence filed consisted of mere denials.
The Appellant’s contention is correct that the trial Magistrate erred in finding that the proposed defence consisted of mere denial, yet there was a triable issue raised as to whether the claim filed was time barred or not. In Tree Shade Motors limited V D.T. Dobie Company (K) Ltd & Another (1998) , the Court of Appeal held that;
“ ……… Where an Ex parte judgment was lawfully entered the court should look at the draft defence to see if it contained a valid or reasonable defence.”
In Patel V East African Cargo Handling Services (1974) EA 75 , the court observed that;
“I agree that where it is regular judgment 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 not go trial for adjudication.”
Accordingly, it is important that the Appellant be allowed to ventilate the issues raised in his defence even if the said issues might or might not succeed.
DISPOSITION
The upshot is that this Appeal has merit. The ruling/Order of Hon J.W. Munene, Senior Resident Magistrate dated 7 th July 2023 and delivered in MILLIMANI SCC COMM E464 OF 2023 is hereby set-aside and the Appellants Application dated 5 th May 2023 is allowed in terms of prayer (c) and (d) thereof.
The Appellant is granted leave to file and serve their statement of defence within the next 14 days from the date of delivery of this Judgement.
Thrown away costs of the said Application is taxed at Kshs 25,000/= payable to the respondent herein within the next 30 days from the delivery of this judgment.
Each party will bear their own costs of this Appeal.
It is so ordered.
Judgment written, dated and signed at Marsabit this ………day of NOVEMBER 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this ………day of NOVEMBER, 2025.
In the presence of;
………………………………….for Appellant
………………………………….for Respondent
………………………………….Court Assistant
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