(Being an Appeal from the Ruling of the Honourable R. K. Ogolla, RM, at Kwale Law Courts, delivered on 6/11/2024 in Kwale RMCC E042 of 2023)
1. The appeal herein by way of a memorandum dated 13/11/2024 seeks the following substantive orders:
a. The ruling delivered on 6/11/2024 in Kwale PMCC E042 of 2023 be set aside and/or vacated.
b. The defendant/appellant’s notice of motion application dated 19/7/2024 be allowed as prayed with costs.
c. ALTERNATIVELY, this court takes up the matter and re-evaluates the evidence on record, submissions by the parties, and/or reassesses the evidence adduced and pronounces itself thereon.
2. The application is based on 14 grounds, which can be summarized into one: that the appellant was dissatisfied with the trial court’s ruling for the reason that the learned trial magistrate failed to properly exercise her discretion in declining to set aside the default judgment and to grant the appellant an opportunity to defend the suit so that it could be considered on its merits.
3. The applicant is aggrieved by the decision of the learned trial magistrate dismissing the appellant’s application to set aside the default judgment entered against the appellant for failure to appear and file a defence in response to the respondent’s suit. The default judgment awarded the respondent damages of KShs 4,003,108/=, as well as costs and interest, for personal injuries sustained after being electrocuted by high-voltage wires that had fallen to the ground due to negligence attributed to the applicant.
4. The appeal was heard by way of submissions filed by learned counsels for the parties.
5. This being a first appeal, this court must examine, re-evaluate, re-analyze, and reconsider the evidence, keeping in mind that it did not observe the witnesses testifying and should therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
6. I have carefully considered the grounds in support of the appeal and the submissions by learned counsels for the parties. The issue for determination is whether or not the learned trial magistrate arrived at the correct conclusions in dismissing the appellant’s applications dated 19/7/2024 and 26/7/2024.
7. The main application was the one dated 19/7/2024 seeking various orders which are, for the ex-parte judgment and decree both dated 15/5/2024, as well as the consequential orders, including the final judgment entered against the appellant, to be set aside and for the appellant to be granted leave to cross-examine the process server, and finally the appellant to be granted leave to file a defence to the respondent’s suit dated 23/1/2023.
8. The application dated 26/7/2024 only prayed for the court to grant the interim relief of stay of execution, as made in the earlier application, pending hearing and determination of that application. The prayer for stay of execution has since been litigated in this court in a separate application and determined. The same was granted on conditions.
9. It was the appellant’s contention that the respondent obtained an irregular ex-parte judgment against the appellant because the appellant was never served with court documents to enable it respond to the suit. Further that the respondent had filed the suit outside the limitation period without first seeking leave of the court. Further that the appellant had a defence to the suit that raised triable issues. Finally, that upon learning of the ex-parte judgment the appellant had expeditiously filed the application to set it aside.
10. The application was supported by the affidavit sworn on 19/7/2024 and supplementary affidavit sworn on 26th August 2024 by Mike Chege, the Manager-Customer Service at the appellant company in which he reiterated and expounded on the grounds in support of the application. He annexed a draft statement of defence to the supplementary affidavit.
11. The respondent Hamisi Ngalaa Ngedzo opposed the application through a replying affidavit sworn on 30/7/2024. He deposed that the application was an afterthought and intended to delay him from realizing the fruits of his judgment. He deposed that the accident that caused him the injuries that led to the suit occurred on 5th November 2017 and he had obtained leave to file the suit on 9th November 2022. He also deposed that the appellants were served both physically by the process server Alex Philip Nzuki and electronically by e-mail.
12. The learned trial magistrate in her ruling, found that the summons to enter appearance had been properly served upon the applicant. She therefore dismissed the applicant’s contention that because the summons was received by an unauthorized person, the service was not proper. She was also satisfied that the electronic service of the summons was proper.
13. Order 10 Rule 11 of the Civil Procedure Rules under which the application to set aside the default judgment was filed in the trial court gives the court wide discretionary power to set aside a default judgment. The rule provides that:
“Where judgment has been entered under this Order, the court may set aside such judgment and any consequential decree or Order upon such terms as are just.”
14. Authorities abound holding that the court has a wide discretion under Order 10 Rule 11 of the Civil Procedure Rules to set aside a judgment in default of appearance upon terms as are just to avoid injustice. In the case of Mbaki & Others v Macharia & Another [2015] eKLR the Court of Appeal emphasized on the right of a party in a suit to be heard. However, there are also many other authorities which emphasize that the discretion will not be exercised to assist a party who deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice (see the case of Shah v Mbogo & Another [1957] EA 116).
15. In exercising its discretion under this rule, the demands of rendering justice should guide the court, and therefore, the discretion should be exercised judiciously.
16. Both learned counsels have cited various cases where the courts have set out the factors the court should consider in exercising that discretion. One such case is that of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR, where the Court of Appeal while considering the issue of setting aside a default judgment stated thus:
“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 others. See Mbogo & Another v. Shah (supra), Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v. Kubende [1986] KLR 492 and CMC Holdings v. Nzioki [2004] 1 KLR 173).
In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo v. Attorney-General [1986-1989] EA 456). The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711:
“[T]here must be ever-present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
17. I consider this decision to comprehensively summarize the factors that the court should consider while exercising the discretion whether or not to set aside a default judgment.
18. Learned counsel for the appellant submits that there was no proof of service of the summons to enter appearance. He dismisses the affidavit of service by the process server and terms the stamp impression on the return of service filed in court as a forgery. I have reviewed the supporting affidavit sworn to on 19th July 2024 by Mike Chege, Manager – Customer Service at Kenya Power & Lighting Company, in support of the application to set aside the default judgment before the trial court. The same does not allege any forgery of the applicant’s rubber stamp nor that the applicant’s internal procedures on how process is served were not followed. The allegations are only made in the submissions and, therefore, are unsubstantiated and of no effect. The prayer to cross-examine the process server would be of no consequence in those circumstances. I find the attempt by the appellant to deny service to be feeble and without merit. I am satisfied that the learned trial magistrate was correct in her decision to find that the service of summons was proper.
19. I am satisfied that the appellant was properly served with the summons to enter appearance and plaint, but failed to enter appearance and file defence within the required period, and the default judgment was therefore regular.
20. The next issue is whether or not the court should set aside the default judgment and allow the appellant to be heard in the matter. It has been held in numerous decisions 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…” (see Wachira Karani vs. Bildad Wachira (2016) eKLR and David Gicheru v Gicheha Farms Limited & another [2020] eKLR). I am guided by these decisions.
21. The provisions of Order 10 Rule 11 on the court’s power to set aside a default judgment find exposition in the case of Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd vs Augustine Kubede [1982-1988] KAR, where the court 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 or the respective merits of the parties”.
22. In exercising its discretion under this rule, the court should be guided by the demands of rendering justice to the parties. This is a judicial discretion, which should be exercised judiciously.
23. The next issue to consider is whether the appellant has a defence to the claim.
24. In ground 3 of the memorandum of appeal, the appellant contends that the learned trial magistrate did not consider the draft statement of defence annexed to the appellant’s supplementary affidavit filed before the trial court, which raised serious triable issues.
25. Learned counsel for the respondent submits that there was no defence to the suit.
26. The claim by the respondent herein was for damages for injuries sustained as a result of electrocution by high voltage wires that had fallen on the ground. He blames the appellant for negligence and/or breach of duty for the said injuries.
27. In the supporting affidavit and supplementary affidavit before the trial court, the appellant deposed that it had a good defence to the suit that raises triable issues. The appellant annexed a draft defence to the supplementary affidavit. The statement of defence annexed to the supplementary affidavit alleges that the suit was time-barred for being filed out of time and also denies the negligence claimed against the appellant and alleges contributory negligence against the respondent.
28. The learned trial magistrate did not consider the issue of the draft defence filed by the appellant.
29. In the case of, Sebei District Administration v Gasyali & Others [1968] E.A. 300 Sheridan J, 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.”
30. In the case of Tree Shade Motors Limited v D.T. Dobie and Company (K) Limited and Another [1998] eKLR) cited by learned counsel for the appellant it was held that inter alia that:
“…where a draft defence is tendered with the application to set aside the default judgment, the court is obliged to consider it to see if it raises a reasonable defence to the Plaintiff’s claim. If it does, the defendant should be given leave to enter and defend.”
31. Learned counsel for the appellant has extensively submitted on the issue of the claim being time-barred. On the claim that the suit was time-barred, learned counsel for the respondent submits that the respondent sought leave before filing the suit.
32. There is evidence on record that the respondent sought and obtained leave to file the suit out of time. If the appellant wishes to challenge the leave so granted that issue can only be considered at the trial of the suit as was held in the case of Oruta & Another vs Nyamato 1988 KLR 490 as cited in the case of Peter Kimani Ndai & Another V Peter Gitau Njoroge [2008] KEHC 2966 (KLR). Gachuhi, J.A., the leading judge in the Oruta case (supra) stated thus:
‘’It will be up to the judge presiding at the trial to decide the issue of limitation as one of the issues but not as a preliminary point. The raising of the preliminary issue that would cause the suit for the plaintiff to be struck out is not encouraged by the Limitation of Actions Act…’’
33. Going back to the issue of whether the appellant should be granted an opportunity to defend the suit in spite of his sleeping on his right and delay in applying to set aside, Apalloo, J. A (as then was) in the case of Philip Chemowolo & Another –vs- Augustine Kubende [1982-88] KAR 103 at 1040 appreciating the issues of procedure said:
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The Court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.”
34. The Court of Appeal further appreciated that mistakes do occur in the process of litigation in the case of Murai vs. Wainaina (No. 4) [1982] KLR 38 where it was held that:
“A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by Senior Counsel. Though in the case of Junior Counsel the Court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of Justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The Court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that Courts of Justice themselves make mistakes which are politely referred to us erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule.”
35. No doubt, the appellant herein made a blunder in failing to enter an appearance and file a defence in time. It was only awakened to action when the respondent acted to execute the judgment.
36. However, I have considered the draft defence and I am satisfied that it raises triable issues, including the issue of limitation of time and contributory negligence of the respondent. I find that had the trial magistrate considered the issue of whether the defence on record had merit, perhaps she would have come to a different conclusion from the one she did in dismissing the application. I therefore find that in failing to consider the proposed defence on record, the learned trial magistrate failed to apply the correct principles in the exercise of her discretion in considering the application for setting aside the default judgment.
37. Further, in ground 10 of the appeal, the appellant avers that the learned trial magistrate erred in law and fact when she failed to appreciate the concession given by both parties on their willingness to have the decretal sums deposited in a joint interest-earning account to enable the parties to litigate on the merits. I have considered the submissions by learned counsel for the respondent, and I note that this averment has not been denied. If parties were willing to have their case heard and determined on the merits, it is only proper that they be allowed to do so.
38. Having considered this appeal, I find the same is merited, and it would be fair and just if the parties were heard fully on the merits of their respective cases.
39. In the order of stay adverted to in paragraph 8 above, this court granted the same on the following terms:
“In the circumstances, I am satisfied that the application for stay of execution dated 27/11/2024 has merit and the same be and is hereby allowed on condition that the applicant deposits in a joint interest earning account the decretal sum together with incidental costs and interest amounting to KShs 4,457,180/= in a joint interest-earning account in the names of counsels for both parties with Kenya Commercial Bank (KCB) within the next 14 days and failure on the part of the applicant to do so, this order of stay will automatically lapse and the respondent will be at liberty to proceed with execution.”
40. I believe the said order was complied with, and that is how the parties proceeded to prosecute this appeal.
41. In the circumstances, the appeal is allowed. The ruling of the learned trial magistrate dated 6/11/2024 is hereby set aside and substituted with an order granting the application by the appellant dated 19/7/2024, in terms that the decree of the trial court issued on 15/5/2024, following the default judgment entered against the appellant on the same date, and all the consequential orders are hereby set aside. The appellant is granted leave to file a defense to the respondent’s suit before the trial court, and the same must be filed within 30 days from the date hereof, with the matter then set down for hearing.
42. The order for the deposit of the decretal sum issued in the application for stay of execution is hereby transposed to this appeal, and the money shall remain deposited as such pending hearing and determination of the suit.
43. In addition, the appellant shall pay to the respondent the throw-away costs of KShs 20,000/= in the next 30 days.
44. The suit before the trial court shall be heard before a different magistrate other than Hon. Ruth Ogolla, RM.
45. Costs shall abide by the outcome of the appeal.
46. Orders accordingly.
Written, dated and signed this 4th day of August 2025
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams this 4th day of August 2025.
In the presence of:
Ms Chege holding brief for Kinyanjui for the Appellant.
Omboga holding brief for Kenzi for the Respondent.
Ummu: Court assistant
1. The appeal herein by way of a memorandum dated 13/11/2024 seeks the following substantive orders:
a. The ruling delivered on 6/11/2024 in Kwale PMCC E042 of 2023 be set aside and/or vacated.
b. The defendant/appellant’s notice of motion application dated 19/7/2024 be allowed as prayed with costs.
c. ALTERNATIVELY, this court takes up the matter and re-evaluates the evidence on record, submissions by the parties, and/or reassesses the evidence adduced and pronounces itself thereon.
2. The application is based on 14 grounds, which can be summarized into one: that the appellant was dissatisfied with the trial court’s ruling for the reason that the learned trial magistrate failed to properly exercise her discretion in declining to set aside the default judgment and to grant the appellant an opportunity to defend the suit so that it could be considered on its merits.
3. The applicant is aggrieved by the decision of the learned trial magistrate dismissing the appellant’s application to set aside the default judgment entered against the appellant for failure to appear and file a defence in response to the respondent’s suit. The default judgment awarded the respondent damages of KShs 4,003,108/=, as well as costs and interest, for personal injuries sustained after being electrocuted by high-voltage wires that had fallen to the ground due to negligence attributed to the applicant.
4. The appeal was heard by way of submissions filed by learned counsels for the parties.
5. This being a first appeal, this court must examine, re-evaluate, re-analyze, and reconsider the evidence, keeping in mind that it did not observe the witnesses testifying and should therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
6. I have carefully considered the grounds in support of the appeal and the submissions by learned counsels for the parties. The issue for determination is whether or not the learned trial magistrate arrived at the correct conclusions in dismissing the appellant’s applications dated 19/7/2024 and 26/7/2024.
7. The main application was the one dated 19/7/2024 seeking various orders which are, for the ex-parte judgment and decree both dated 15/5/2024, as well as the consequential orders, including the final judgment entered against the appellant, to be set aside and for the appellant to be granted leave to cross-examine the process server, and finally the appellant to be granted leave to file a defence to the respondent’s suit dated 23/1/2023.
8. The application dated 26/7/2024 only prayed for the court to grant the interim relief of stay of execution, as made in the earlier application, pending hearing and determination of that application. The prayer for stay of execution has since been litigated in this court in a separate application and determined. The same was granted on conditions.
9. It was the appellant’s contention that the respondent obtained an irregular ex-parte judgment against the appellant because the appellant was never served with court documents to enable it respond to the suit. Further that the respondent had filed the suit outside the limitation period without first seeking leave of the court. Further that the appellant had a defence to the suit that raised triable issues. Finally, that upon learning of the ex-parte judgment the appellant had expeditiously filed the application to set it aside.
10. The application was supported by the affidavit sworn on 19/7/2024 and supplementary affidavit sworn on 26th August 2024 by Mike Chege, the Manager-Customer Service at the appellant company in which he reiterated and expounded on the grounds in support of the application. He annexed a draft statement of defence to the supplementary affidavit.
11. The respondent Hamisi Ngalaa Ngedzo opposed the application through a replying affidavit sworn on 30/7/2024. He deposed that the application was an afterthought and intended to delay him from realizing the fruits of his judgment. He deposed that the accident that caused him the injuries that led to the suit occurred on 5th November 2017 and he had obtained leave to file the suit on 9th November 2022. He also deposed that the appellants were served both physically by the process server Alex Philip Nzuki and electronically by e-mail.
12. The learned trial magistrate in her ruling, found that the summons to enter appearance had been properly served upon the applicant. She therefore dismissed the applicant’s contention that because the summons was received by an unauthorized person, the service was not proper. She was also satisfied that the electronic service of the summons was proper.
13. Order 10 Rule 11 of the Civil Procedure Rules under which the application to set aside the default judgment was filed in the trial court gives the court wide discretionary power to set aside a default judgment. The rule provides that:
“Where judgment has been entered under this Order, the court may set aside such judgment and any consequential decree or Order upon such terms as are just.”
14. Authorities abound holding that the court has a wide discretion under Order 10 Rule 11 of the Civil Procedure Rules to set aside a judgment in default of appearance upon terms as are just to avoid injustice. In the case of Mbaki & Others v Macharia & Another [2015] eKLR the Court of Appeal emphasized on the right of a party in a suit to be heard. However, there are also many other authorities which emphasize that the discretion will not be exercised to assist a party who deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice (see the case of Shah v Mbogo & Another [1957] EA 116).
15. In exercising its discretion under this rule, the demands of rendering justice should guide the court, and therefore, the discretion should be exercised judiciously.
16. Both learned counsels have cited various cases where the courts have set out the factors the court should consider in exercising that discretion. One such case is that of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR, where the Court of Appeal while considering the issue of setting aside a default judgment stated thus:
“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 others. See Mbogo & Another v. Shah (supra), Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v. Kubende [1986] KLR 492 and CMC Holdings v. Nzioki [2004] 1 KLR 173).
In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo v. Attorney-General [1986-1989] EA 456). The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711:
“[T]here must be ever-present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
17. I consider this decision to comprehensively summarize the factors that the court should consider while exercising the discretion whether or not to set aside a default judgment.
18. Learned counsel for the appellant submits that there was no proof of service of the summons to enter appearance. He dismisses the affidavit of service by the process server and terms the stamp impression on the return of service filed in court as a forgery. I have reviewed the supporting affidavit sworn to on 19th July 2024 by Mike Chege, Manager – Customer Service at Kenya Power & Lighting Company, in support of the application to set aside the default judgment before the trial court. The same does not allege any forgery of the applicant’s rubber stamp nor that the applicant’s internal procedures on how process is served were not followed. The allegations are only made in the submissions and, therefore, are unsubstantiated and of no effect. The prayer to cross-examine the process server would be of no consequence in those circumstances. I find the attempt by the appellant to deny service to be feeble and without merit. I am satisfied that the learned trial magistrate was correct in her decision to find that the service of summons was proper.
19. I am satisfied that the appellant was properly served with the summons to enter appearance and plaint, but failed to enter appearance and file defence within the required period, and the default judgment was therefore regular.
20. The next issue is whether or not the court should set aside the default judgment and allow the appellant to be heard in the matter. It has been held in numerous decisions 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…” (see Wachira Karani vs. Bildad Wachira (2016) eKLR and David Gicheru v Gicheha Farms Limited & another [2020] eKLR). I am guided by these decisions.
21. The provisions of Order 10 Rule 11 on the court’s power to set aside a default judgment find exposition in the case of Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd vs Augustine Kubede [1982-1988] KAR, where the court 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 or the respective merits of the parties”.
22. In exercising its discretion under this rule, the court should be guided by the demands of rendering justice to the parties. This is a judicial discretion, which should be exercised judiciously.
23. The next issue to consider is whether the appellant has a defence to the claim.
24. In ground 3 of the memorandum of appeal, the appellant contends that the learned trial magistrate did not consider the draft statement of defence annexed to the appellant’s supplementary affidavit filed before the trial court, which raised serious triable issues.
25. Learned counsel for the respondent submits that there was no defence to the suit.
26. The claim by the respondent herein was for damages for injuries sustained as a result of electrocution by high voltage wires that had fallen on the ground. He blames the appellant for negligence and/or breach of duty for the said injuries.
27. In the supporting affidavit and supplementary affidavit before the trial court, the appellant deposed that it had a good defence to the suit that raises triable issues. The appellant annexed a draft defence to the supplementary affidavit. The statement of defence annexed to the supplementary affidavit alleges that the suit was time-barred for being filed out of time and also denies the negligence claimed against the appellant and alleges contributory negligence against the respondent.
28. The learned trial magistrate did not consider the issue of the draft defence filed by the appellant.
29. In the case of, Sebei District Administration v Gasyali & Others [1968] E.A. 300 Sheridan J, 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.”
30. In the case of Tree Shade Motors Limited v D.T. Dobie and Company (K) Limited and Another [1998] eKLR) cited by learned counsel for the appellant it was held that inter alia that:
“…where a draft defence is tendered with the application to set aside the default judgment, the court is obliged to consider it to see if it raises a reasonable defence to the Plaintiff’s claim. If it does, the defendant should be given leave to enter and defend.”
31. Learned counsel for the appellant has extensively submitted on the issue of the claim being time-barred. On the claim that the suit was time-barred, learned counsel for the respondent submits that the respondent sought leave before filing the suit.
32. There is evidence on record that the respondent sought and obtained leave to file the suit out of time. If the appellant wishes to challenge the leave so granted that issue can only be considered at the trial of the suit as was held in the case of Oruta & Another vs Nyamato 1988 KLR 490 as cited in the case of Peter Kimani Ndai & Another V Peter Gitau Njoroge [2008] KEHC 2966 (KLR). Gachuhi, J.A., the leading judge in the Oruta case (supra) stated thus:
‘’It will be up to the judge presiding at the trial to decide the issue of limitation as one of the issues but not as a preliminary point. The raising of the preliminary issue that would cause the suit for the plaintiff to be struck out is not encouraged by the Limitation of Actions Act…’’
33. Going back to the issue of whether the appellant should be granted an opportunity to defend the suit in spite of his sleeping on his right and delay in applying to set aside, Apalloo, J. A (as then was) in the case of Philip Chemowolo & Another –vs- Augustine Kubende [1982-88] KAR 103 at 1040 appreciating the issues of procedure said:
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The Court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.”
34. The Court of Appeal further appreciated that mistakes do occur in the process of litigation in the case of Murai vs. Wainaina (No. 4) [1982] KLR 38 where it was held that:
“A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by Senior Counsel. Though in the case of Junior Counsel the Court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of Justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The Court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that Courts of Justice themselves make mistakes which are politely referred to us erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule.”
35. No doubt, the appellant herein made a blunder in failing to enter an appearance and file a defence in time. It was only awakened to action when the respondent acted to execute the judgment.
36. However, I have considered the draft defence and I am satisfied that it raises triable issues, including the issue of limitation of time and contributory negligence of the respondent. I find that had the trial magistrate considered the issue of whether the defence on record had merit, perhaps she would have come to a different conclusion from the one she did in dismissing the application. I therefore find that in failing to consider the proposed defence on record, the learned trial magistrate failed to apply the correct principles in the exercise of her discretion in considering the application for setting aside the default judgment.
37. Further, in ground 10 of the appeal, the appellant avers that the learned trial magistrate erred in law and fact when she failed to appreciate the concession given by both parties on their willingness to have the decretal sums deposited in a joint interest-earning account to enable the parties to litigate on the merits. I have considered the submissions by learned counsel for the respondent, and I note that this averment has not been denied. If parties were willing to have their case heard and determined on the merits, it is only proper that they be allowed to do so.
38. Having considered this appeal, I find the same is merited, and it would be fair and just if the parties were heard fully on the merits of their respective cases.
39. In the order of stay adverted to in paragraph 8 above, this court granted the same on the following terms:
“In the circumstances, I am satisfied that the application for stay of execution dated 27/11/2024 has merit and the same be and is hereby allowed on condition that the applicant deposits in a joint interest earning account the decretal sum together with incidental costs and interest amounting to KShs 4,457,180/= in a joint interest-earning account in the names of counsels for both parties with Kenya Commercial Bank (KCB) within the next 14 days and failure on the part of the applicant to do so, this order of stay will automatically lapse and the respondent will be at liberty to proceed with execution.”
40. I believe the said order was complied with, and that is how the parties proceeded to prosecute this appeal.
41. In the circumstances, the appeal is allowed. The ruling of the learned trial magistrate dated 6/11/2024 is hereby set aside and substituted with an order granting the application by the appellant dated 19/7/2024, in terms that the decree of the trial court issued on 15/5/2024, following the default judgment entered against the appellant on the same date, and all the consequential orders are hereby set aside. The appellant is granted leave to file a defense to the respondent’s suit before the trial court, and the same must be filed within 30 days from the date hereof, with the matter then set down for hearing.
42. The order for the deposit of the decretal sum issued in the application for stay of execution is hereby transposed to this appeal, and the money shall remain deposited as such pending hearing and determination of the suit.
43. In addition, the appellant shall pay to the respondent the throw-away costs of KShs 20,000/= in the next 30 days.
44. The suit before the trial court shall be heard before a different magistrate other than Hon. Ruth Ogolla, RM.
45. Costs shall abide by the outcome of the appeal.
46. Orders accordingly.
Written, dated and signed this 4th day of August 2025
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams this 4th day of August 2025.
In the presence of:
Ms Chege holding brief for Kinyanjui for the Appellant.
Omboga holding brief for Kenzi for the Respondent.
Ummu: Court assistant