(Being an appeal from a ruling of Hon. C.A. Okumu dated 22.11.2024.)
JUDGEMENT
This appeal emanates from a ruling of Hon C.A. Okumu delivered on the 22.11.2024 wherein she dismissed the appellant’s application dated 30.05.24 which had sought for setting aside of the exparte interlocutory judgement that had been entered in favour of the respondent on 30.4.24. The appeal was disposed of by way of written submission.
APPELLANT’S SUBMISSION
The appellant submitted that the learned magistrate erred in law and in fact in failing to consider that the appellant had already filed a response to the claim, which response raised triable issues. That the learned magistrate erred in considering only the issue of service.
The appellant cited the case of David Kiptanui Yego & 134 others v Benjamin Rono (2012) eKLR.
RESPONDENT’S SUBMISSION
The respondent opposed the appeal by arguing that the learned magistrate correctly exercised her discretion and could not be faulted.
DETERMINATION
This being a first appeal I am enjoined to reevaluate, reassess and reanalyze the extracts of the record before the lower court and reach my own conclusion. I must however keep at the back of my mind that unlike the trial court, I did not have the advantage of hearing the evidence firsthand.
In the case of Mbogo & another v Shah (1968) EA 93 , the court stated:
“… this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion”
This court should determine whether the learned magistrate properly exercised her discretion in declining to set aside the interlocutory judgement. The elements that a court has to consider in exercise of discretion to set aside a default judgment are well settled. They include the nature of defence, the period of delay in bringing the application and consideration of any prejudice that the claimant may suffer if the default judgment is set aside.
In Philip Kiptoo Chemwolo & Another v Augustine Kubede (1982-88) KAR 1036 , the court of appeal held:
“The court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties”
One of the key factors to consider in setting aside an exparte judgment is whether the defendant has a defence on merit. In the case of Sebei District Administrator v Gosyali & others (1968) EA 300 Sheridan J (as he then was) observed that:
“The nature of the action should be considered. The defence if one has been brought to the notice of the court, however irregularly, should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered and finally, I think, it should always be remembered that to deny the subject a hearing should be the last resort of the court”
Where appropriate, the court can set aside default judgment on terms. A defaulting defendant may be ordered to pay the claimant’s thrown away costs.
In the matter before the trial magistrate, there was no dispute that the appellant was properly served. The appellants however raised amongst other issues, the assertion that it had a defence to the claim. I have had the benefit of reading through the affidavit of the appellant’s representative made before the trial court. In my opinion, it raises triable issues. In this circumstance, it would be in the interest of justice, if the parties were heard fully on merit of their respective claims.
I find therefore that the learned magistrate erred in law in failing to consider all the entire circumstances of this case including the nature of the claim and that triable issues had been raised by the appellant and that the issue of service was not the only consideration in an application of the nature before her.
In the upshot, the appeal herein succeeds. The ruling by the learned magistrate dated 22.11.24 is set aside and is substituted with one allowing the notice of motion dated 30.5.24 on the following terms:
a) The exparte judgment against the defendant (appellant) be and is hereby set aside
b) The defendant to file a response to the claim within 10 days from the date of this judgement.
c) The defendant (appellant) to pay the claimant thrown away costs before the magistrate court, which I assess at Kshs. 10,000 within 30 days of this judgment
d) The appellant shall however have costs of this appeal
DATED, SIGNED AND DELIVERED via Teams this 9 th JULY 2026
D.O. ONYANGO
JUDGE
1
JUDGEMENT
This appeal emanates from a ruling of Hon C.A. Okumu delivered on the 22.11.2024 wherein she dismissed the appellant’s application dated 30.05.24 which had sought for setting aside of the exparte interlocutory judgement that had been entered in favour of the respondent on 30.4.24. The appeal was disposed of by way of written submission.
APPELLANT’S SUBMISSION
The appellant submitted that the learned magistrate erred in law and in fact in failing to consider that the appellant had already filed a response to the claim, which response raised triable issues. That the learned magistrate erred in considering only the issue of service.
The appellant cited the case of David Kiptanui Yego & 134 others v Benjamin Rono (2012) eKLR.
RESPONDENT’S SUBMISSION
The respondent opposed the appeal by arguing that the learned magistrate correctly exercised her discretion and could not be faulted.
DETERMINATION
This being a first appeal I am enjoined to reevaluate, reassess and reanalyze the extracts of the record before the lower court and reach my own conclusion. I must however keep at the back of my mind that unlike the trial court, I did not have the advantage of hearing the evidence firsthand.
In the case of Mbogo & another v Shah (1968) EA 93 , the court stated:
“… this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion”
This court should determine whether the learned magistrate properly exercised her discretion in declining to set aside the interlocutory judgement. The elements that a court has to consider in exercise of discretion to set aside a default judgment are well settled. They include the nature of defence, the period of delay in bringing the application and consideration of any prejudice that the claimant may suffer if the default judgment is set aside.
In Philip Kiptoo Chemwolo & Another v Augustine Kubede (1982-88) KAR 1036 , the court of appeal held:
“The court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties”
One of the key factors to consider in setting aside an exparte judgment is whether the defendant has a defence on merit. In the case of Sebei District Administrator v Gosyali & others (1968) EA 300 Sheridan J (as he then was) observed that:
“The nature of the action should be considered. The defence if one has been brought to the notice of the court, however irregularly, should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered and finally, I think, it should always be remembered that to deny the subject a hearing should be the last resort of the court”
Where appropriate, the court can set aside default judgment on terms. A defaulting defendant may be ordered to pay the claimant’s thrown away costs.
In the matter before the trial magistrate, there was no dispute that the appellant was properly served. The appellants however raised amongst other issues, the assertion that it had a defence to the claim. I have had the benefit of reading through the affidavit of the appellant’s representative made before the trial court. In my opinion, it raises triable issues. In this circumstance, it would be in the interest of justice, if the parties were heard fully on merit of their respective claims.
I find therefore that the learned magistrate erred in law in failing to consider all the entire circumstances of this case including the nature of the claim and that triable issues had been raised by the appellant and that the issue of service was not the only consideration in an application of the nature before her.
In the upshot, the appeal herein succeeds. The ruling by the learned magistrate dated 22.11.24 is set aside and is substituted with one allowing the notice of motion dated 30.5.24 on the following terms:
a) The exparte judgment against the defendant (appellant) be and is hereby set aside
b) The defendant to file a response to the claim within 10 days from the date of this judgement.
c) The defendant (appellant) to pay the claimant thrown away costs before the magistrate court, which I assess at Kshs. 10,000 within 30 days of this judgment
d) The appellant shall however have costs of this appeal
DATED, SIGNED AND DELIVERED via Teams this 9 th JULY 2026
D.O. ONYANGO
JUDGE
1