Introduction and background
1. This ruling determines the application dated 17th September 2025, which seeks to review and set aside a default ex parte judgment entered on 19th August 2025, and for the Court to grant the Defendant, who is the Applicant herein, leave to enter appearance, defend the suit, and file its defence out of time within 14 days of the order of this Court. The application is supported by an affidavit sworn by the Applicant's Director and is opposed by way of a Replying Affidavit sworn on 8th October 2025 by KETUL SURENDRA TANNA, the 3rd Plaintiff and Director of the 1st and 2nd Plaintiffs. Both parties also filed written submissions, which I have duly considered in arriving at this determination.
Analysis and Determination
2. The sole issue for determination is whether the Applicant has made out a sufficient case warranting the grant of the orders sought under Order 10 Rule 11 of the Civil Procedure Rules. The principles governing the exercise of the Court's discretion in such applications were comprehensively set out by the Court of Appeal in James Kanyita Nderitu & Another V Marios Philotas Ghikas & Another, [2016] KECA 470 (KLR). In that decision, the Court identified the following considerations as relevant: the reasons for the failure to file a statement of defence within the prescribed time; the length of time taken before bringing the application to set aside the default judgment; whether the intended defence raises triable issues; the likely prejudice to each party; and whether the interests of justice favour setting aside the default judgment.
3. I proceed to apply these considerations to the facts of the present case.
On Service and Entry of Appearance:
4. The Applicant does not dispute that it was duly served with both the Plaint and the Summons to Enter Appearance. Indeed, the Applicant concedes that while appearance was entered, its statement of defense was not filed as they were not aware whether Summons to Enter Appearance had been served. Having made that concession, it follows that it was not incumbent upon the Plaintiffs to notify the Defendant's Counsel of the Summons once service had been properly effected. Up to that point, no fault can be attributed to the Plaintiffs.
On Subsequent Court Appearances:
5. What followed, however, gives this Court some pause. The record reveals no fewer than three Court attendances, on 5th May 2025, 2nd July 2025, and 19th August 2025, the last of which culminated in the entry of the default judgment now being challenged. The Plaintiffs do not deny that on each of these occasions, the Defendant's Counsel was not notified of the hearing dates. This is significant.
6. The fact that the Defendant had entered appearance and that its Counsel was known and on record placed an obligation on the Plaintiffs to notify the Defendant's Counsel of all subsequent Court hearings. The failure to do so is not a matter this Court can entirely overlook. While it does not constitute a ground to excuse the Defendant's failure to file their defense, it does inform the exercise of this Court's discretion in considering whether the default judgment was entered in circumstances that were entirely fair to the Defendant. The Defendant deserved to be served and given an opportunity to address the Court as to why it had not filed a defense.
On the Existence of a Triable Defence:
7. Perhaps most critically, this Court is required to assess whether the Applicant has an arguable defence to the suit, such that it would be unjust to allow the default judgment to stand. Having carefully considered the averments made by the Applicant, I am satisfied that the intended defence raises a number of substantial issues that are deserving of judicial consideration.
8. The Applicant raises the following defences, among others: that the present suit is res judicata and sub judice by reason of the proceedings in IC E009 of 2021 and HCCC E846 of 2021; that the Plaintiffs have, by their own pleadings, admitted indebtedness to the Defendant; that the Plaintiffs lack the locus standi to institute the present proceedings; that any challenge to the Administrator's conduct under Section 592 of the Insolvency Act ought properly to have been ventilated before the insolvency court; that the insolvency proceedings have since been concluded, and that this Court, not being seized of the matter as an insolvency court, lacks jurisdiction to reopen questions that were properly the preserve of that forum.
9. Additionally, there is the question of whether the 2nd, 3rd, and 4th Plaintiffs have independent locus to institute these proceedings, given that the 1st Plaintiff is a distinct legal entity.
10. The Applicant has placed before this Court the Plaint filed in HCCOMM 846 of 2021 as well as in E121 of 2025. Having examined those pleadings, I am satisfied that the defences raised here are not frivolous or vexatious. On the contrary, they raise genuine triable issues that warrant full judicial examination.
On Prejudice and Delay:
11. The claim for special damages in the present suit amounts to Kshs. 3,766,688,256/=, among other reliefs. This is an extraordinarily substantial sum. The interests of justice, and the principle that parties ought ordinarily to be afforded an opportunity to be heard before judgment is entered against them, weigh heavily in favour of setting aside the default judgment and allowing the matter to proceed to a full hearing.
12. Finally, on the question of delay, I note that the present application was filed barely a month after the default judgment was entered on 19th August 2025. This cannot, by any measure, be characterized as inordinate or inexcusable delay. The promptness with which the Applicant moved to challenge the default judgment is itself indicative of a genuine intention to defend the suit.
Disposition
13. For all the foregoing reasons, I am satisfied that the Applicant has met the threshold for the setting aside of the default judgment, and the application dated 17th September 2025 is hereby allowed in the following terms:
i. The default ex parte judgment entered on 19th August 2025 is hereby set aside.
ii. The Defendant is granted leave to file its Defence within 14 days from the date of this ruling.
iii. The costs of this application shall be in the cause.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 3RD DAY OF JULY 2026.
F. MUGAMBI
JUDGE
Delivered in presence of:
Ms Gitonga for Mogeni for plaintiff/respondent
Wawire for defendant
Court Assistants: Lillian & Gloria
1. This ruling determines the application dated 17th September 2025, which seeks to review and set aside a default ex parte judgment entered on 19th August 2025, and for the Court to grant the Defendant, who is the Applicant herein, leave to enter appearance, defend the suit, and file its defence out of time within 14 days of the order of this Court. The application is supported by an affidavit sworn by the Applicant's Director and is opposed by way of a Replying Affidavit sworn on 8th October 2025 by KETUL SURENDRA TANNA, the 3rd Plaintiff and Director of the 1st and 2nd Plaintiffs. Both parties also filed written submissions, which I have duly considered in arriving at this determination.
Analysis and Determination
2. The sole issue for determination is whether the Applicant has made out a sufficient case warranting the grant of the orders sought under Order 10 Rule 11 of the Civil Procedure Rules. The principles governing the exercise of the Court's discretion in such applications were comprehensively set out by the Court of Appeal in James Kanyita Nderitu & Another V Marios Philotas Ghikas & Another, [2016] KECA 470 (KLR). In that decision, the Court identified the following considerations as relevant: the reasons for the failure to file a statement of defence within the prescribed time; the length of time taken before bringing the application to set aside the default judgment; whether the intended defence raises triable issues; the likely prejudice to each party; and whether the interests of justice favour setting aside the default judgment.
3. I proceed to apply these considerations to the facts of the present case.
On Service and Entry of Appearance:
4. The Applicant does not dispute that it was duly served with both the Plaint and the Summons to Enter Appearance. Indeed, the Applicant concedes that while appearance was entered, its statement of defense was not filed as they were not aware whether Summons to Enter Appearance had been served. Having made that concession, it follows that it was not incumbent upon the Plaintiffs to notify the Defendant's Counsel of the Summons once service had been properly effected. Up to that point, no fault can be attributed to the Plaintiffs.
On Subsequent Court Appearances:
5. What followed, however, gives this Court some pause. The record reveals no fewer than three Court attendances, on 5th May 2025, 2nd July 2025, and 19th August 2025, the last of which culminated in the entry of the default judgment now being challenged. The Plaintiffs do not deny that on each of these occasions, the Defendant's Counsel was not notified of the hearing dates. This is significant.
6. The fact that the Defendant had entered appearance and that its Counsel was known and on record placed an obligation on the Plaintiffs to notify the Defendant's Counsel of all subsequent Court hearings. The failure to do so is not a matter this Court can entirely overlook. While it does not constitute a ground to excuse the Defendant's failure to file their defense, it does inform the exercise of this Court's discretion in considering whether the default judgment was entered in circumstances that were entirely fair to the Defendant. The Defendant deserved to be served and given an opportunity to address the Court as to why it had not filed a defense.
On the Existence of a Triable Defence:
7. Perhaps most critically, this Court is required to assess whether the Applicant has an arguable defence to the suit, such that it would be unjust to allow the default judgment to stand. Having carefully considered the averments made by the Applicant, I am satisfied that the intended defence raises a number of substantial issues that are deserving of judicial consideration.
8. The Applicant raises the following defences, among others: that the present suit is res judicata and sub judice by reason of the proceedings in IC E009 of 2021 and HCCC E846 of 2021; that the Plaintiffs have, by their own pleadings, admitted indebtedness to the Defendant; that the Plaintiffs lack the locus standi to institute the present proceedings; that any challenge to the Administrator's conduct under Section 592 of the Insolvency Act ought properly to have been ventilated before the insolvency court; that the insolvency proceedings have since been concluded, and that this Court, not being seized of the matter as an insolvency court, lacks jurisdiction to reopen questions that were properly the preserve of that forum.
9. Additionally, there is the question of whether the 2nd, 3rd, and 4th Plaintiffs have independent locus to institute these proceedings, given that the 1st Plaintiff is a distinct legal entity.
10. The Applicant has placed before this Court the Plaint filed in HCCOMM 846 of 2021 as well as in E121 of 2025. Having examined those pleadings, I am satisfied that the defences raised here are not frivolous or vexatious. On the contrary, they raise genuine triable issues that warrant full judicial examination.
On Prejudice and Delay:
11. The claim for special damages in the present suit amounts to Kshs. 3,766,688,256/=, among other reliefs. This is an extraordinarily substantial sum. The interests of justice, and the principle that parties ought ordinarily to be afforded an opportunity to be heard before judgment is entered against them, weigh heavily in favour of setting aside the default judgment and allowing the matter to proceed to a full hearing.
12. Finally, on the question of delay, I note that the present application was filed barely a month after the default judgment was entered on 19th August 2025. This cannot, by any measure, be characterized as inordinate or inexcusable delay. The promptness with which the Applicant moved to challenge the default judgment is itself indicative of a genuine intention to defend the suit.
Disposition
13. For all the foregoing reasons, I am satisfied that the Applicant has met the threshold for the setting aside of the default judgment, and the application dated 17th September 2025 is hereby allowed in the following terms:
i. The default ex parte judgment entered on 19th August 2025 is hereby set aside.
ii. The Defendant is granted leave to file its Defence within 14 days from the date of this ruling.
iii. The costs of this application shall be in the cause.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 3RD DAY OF JULY 2026.
F. MUGAMBI
JUDGE
Delivered in presence of:
Ms Gitonga for Mogeni for plaintiff/respondent
Wawire for defendant
Court Assistants: Lillian & Gloria