1. For determination is the Defendant’s Notice of Motion application dated 10/12/2024 filed under section 1A, 1B, and 3A of the Civil Procedure Act, order 9 rules 9 and 10, order 10 rule 11 and order 51 rule 1 of the civil procedure rules, 2010.
2. The Defendant sought the following orders:-
“1. Spent.
2. The firm of Wachira Gachoka & Company Advocates be granted leave to come on record for the Applicant/ Respondent in place of the firm of Bundi & Company Advocates.
3. THAT the judgment entered on 15th November 2024 against the Applicant/ Respondent in default of a response to the Originating Summons dated 13th October 2022 be set aside.
4. THAT the Applicant/ Respondent be granted leave to file its response to the Originating Summons dated 13th October 2022 out of time.
5. Spent.
6. THAT costs of this application be in the cause.”
3. The application was supported by the affidavit of Bundi N. Robin, a partner in the Defendant firm. The Defendant admitted to having been properly served and having entered Appearance in the suit, but failed to file a response due to what they termed as administrative oversight. As a result, judgment was entered in default, which they argue, would be prejudicial to their position.
4. The Defendant/Applicant claims to have a strong and meritorious defense, which was attached to the application in draft form. Furthermore, he indicated that he had retained new counsel and needed the court's permission for the change of representation as required by law.
5. The Defendant asserted that unless the judgment was set aside and execution stayed, he stood to suffer irreparable harm, especially since a notice of entry of judgment had already been issued. He concluded that it was in the interest of justice and fairness for the court to allow the application and permit the matter to proceed on its merits to protect their constitutional right to a fair hearing.
6. The Plaintiff opposed the application through a replying affidavit sworn on 17/2/2025 by George Wandati, a partner in the Plaintiff law firm.
7. Mr. Wandati argued that the application lacked merit and should be dismissed with costs. He acknowledged that the court had discretion to set aside default judgments but emphasized that this discretion must be guided by factors such as the length of delay, the reason for delay, the strength of the defence, and potential prejudice to the Plaintiff.
8. He stated that the Plaintiff filed the suit on 23/11/2022, served the Defendant on the same date, and that the Defendant acknowledged service and entered Appearance but failed to file any response; that despite being repeatedly served with mention notices, the Defendant did not attend court or participate in proceedings that ensued, and that it was only after judgment was entered in default on 15/11/ 2024, almost two years later, that the Defendant sprung in action by filing the current application.
9. Mr. Wandati described the two-year delay as inexcusable and attributed it to the Defendant's negligence and indolence. He criticized the Defendant’s explanation of "administrative oversight" as vague and unsupported.
10. He further argued that the Plaintiff would suffer prejudice if the application were granted, as the Defendant had repeatedly failed to engage in the subsequent legal processes, including the mediation, despite being properly served.
11. In conclusion, Mr. Wandati contended that the Defendant is merely attempting to delay justice by avoiding meeting his obligation as contained in the subject professional undertaking. He insisted that the only way the Defendant could be released from the undertaking was through payment. Therefore, he urged the court to dismiss the application with costs.
12. In response to the issues raised in Mr. Wandati’s affidavit, the Defendant filed a further affidavit sworn on 26/2/2025 by himself. In the affidavit, the Defendant averred that his application raised serious legal issues that needed to be addressed on merit; that the application had been filed within a reasonable timeframe, and that he had provided a satisfactory explanation for the delay in responding to the suit.
13. The Defendant contested the Plaintiff’s claim that a professional undertaking had been breached. He asserted that at the material time, the undertaking had not crystallized and was, therefore, unenforceable. He added that the responsibility for settling the legal fees lay with one Eric Agbeko, not with him personally. He cited the case of Arthur K. Igeria t/a Igeria & Co. Advocates v. Michael Ndaiga [2017] eKLR to argue that for a professional undertaking to be enforceable, it must be clear, unambiguous, capable of performance, and contingent events must have occurred. He asserted that the undertaking in question failed to meet this threshold.
14. He further argued that the Plaintiff would not suffer any prejudice if his application were allowed, as the matter should be determined based on its merits.
15. The Application was canvassed by way of written submissions. The Defendant/Applicant’s submissions is dated 5/3/2025, whilst that of the Plaintiff’s submissions is dated 20/03/2025.
Analysis and determination:
16. I have considered the Defendant’s application filed herein, the response by the Plaintiff, and the submissions filed by the parties in support of their respective positions. The core issue for determination is whether the Defendant has made out a case for setting aside the ex parte judgment entered on 15/11/2024.
17. Order 10 Rule 11 of the Civil Procedure Rules, 2010 empowers the Court to set aside a default judgement entered under Order 10 (in default of Appearance or Defence) and any consequential decree or Order upon such terms as are just. It provides that: -
“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”
18. Principles of setting aside interlocutory judgments were well laid out in the case of Patel v East Africa Cargo Handling Services Ltd (1974) EA 75 as per Duffus P. who stated as follows:-
“The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgement 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 go to trial for adjudication.”
19. The Court of Appeal in the case of In James Kanyita Nderitu v Maries Philotas Ghika & Another [2016] eKLR, stated that: -
“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 appearances 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 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 such party is likely to suffer.”
20. From the pleadings and submissions filed herein, it is a common ground that the Plaintiff/Respondent instituted this suit on 23/11/2022 vide an Originating Summons dated 13/10/2022. It is equally not in dispute that the Defendant was duly served on 23/11/2022 and proceeded to enter an Appearance but failed to file a defence or to participate in the proceedings, including the mediation process that ensued. Consequently, judgment in default was entered on 15/11/2024.
21. The Defendant submitted that he has always been keen on defending the suit and that upon service of the Originating Summons in respect of the matter, he entered Appearance. That the delay or failure to file a response within the stipulated timelines was not intentional but was attributable to an administrative oversight and inadvertent mistake.
22. The Defendant’s reason for failure to file his defence within the stipulated timelines was what he referred to as “an administrative oversight and inadvertent mistake.” He did not, however, elaborate, nor did the Counsel substantiate the nature of the alleged administrative oversight.
23. Under order 10 rule 11 of the Civil Procedure Rules 2010, the court has the unfettered jurisdiction to set aside a default judgement in under circumstances that are just.
24. In the present case, it is clear that it was only after judgment in default was entered that the Defendant sprung into action by filing the instant application seeking to have the said judgment set aside. Evidence on record indicate that the Defendant has brought the instant application after a period of almost two years had lapsed from the time they were served with the Summons.
25. The record further indicates that even when the matter proceeded to mediation, the Defendant neglected to participate in the proceedings. Additionally that the Defendant was constantly served with mention notices but failed to participate.
26. Based on the foregoing, I find that the Defendant was indolent and deliberately failed to defend this suit. Although the Defendant provided a draft defence to the Plaintiff's Originating Summons, his reason for the delay in participating in this matter is vague and unsubstantiated.
27. In Rayat Trading Co. Limited -vs- Bank of Baroda & Tetei House Ltd [2018] eKLR the Court was clear that among the matters to taken into account by courts when considering application for setting aside a default judgment includes where the defendant has a real prospect of successfully defending the claim; or where it appears to the court that there is some other good reason why the judgment should be set aside.
28. In this case, it is this Court’s view that it would be prejudicial to the Plaintiff and the interest of justice if the court were to grant the instant application. I am satisfied that the Defendant was duly served with the summons by has not exhibited in the instant application, reasonable grounds he failed to file a response/defence to the Summons.
29. The upshot of the foregoing is that the Plaintiff has not made out a case to warrant this court to exercise its discretion to set aside the judgment in default.
30. The Defendant’s application filed herein and dated 10th December 2024 is therefore dismissed with costs to the Plaintiff.
31. The file is closed.
32. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
29TH DAY OF MAY, 2025
ADO MOSES
In the presence of:
Moses – C/A
2. The Defendant sought the following orders:-
“1. Spent.
2. The firm of Wachira Gachoka & Company Advocates be granted leave to come on record for the Applicant/ Respondent in place of the firm of Bundi & Company Advocates.
3. THAT the judgment entered on 15th November 2024 against the Applicant/ Respondent in default of a response to the Originating Summons dated 13th October 2022 be set aside.
4. THAT the Applicant/ Respondent be granted leave to file its response to the Originating Summons dated 13th October 2022 out of time.
5. Spent.
6. THAT costs of this application be in the cause.”
3. The application was supported by the affidavit of Bundi N. Robin, a partner in the Defendant firm. The Defendant admitted to having been properly served and having entered Appearance in the suit, but failed to file a response due to what they termed as administrative oversight. As a result, judgment was entered in default, which they argue, would be prejudicial to their position.
4. The Defendant/Applicant claims to have a strong and meritorious defense, which was attached to the application in draft form. Furthermore, he indicated that he had retained new counsel and needed the court's permission for the change of representation as required by law.
5. The Defendant asserted that unless the judgment was set aside and execution stayed, he stood to suffer irreparable harm, especially since a notice of entry of judgment had already been issued. He concluded that it was in the interest of justice and fairness for the court to allow the application and permit the matter to proceed on its merits to protect their constitutional right to a fair hearing.
6. The Plaintiff opposed the application through a replying affidavit sworn on 17/2/2025 by George Wandati, a partner in the Plaintiff law firm.
7. Mr. Wandati argued that the application lacked merit and should be dismissed with costs. He acknowledged that the court had discretion to set aside default judgments but emphasized that this discretion must be guided by factors such as the length of delay, the reason for delay, the strength of the defence, and potential prejudice to the Plaintiff.
8. He stated that the Plaintiff filed the suit on 23/11/2022, served the Defendant on the same date, and that the Defendant acknowledged service and entered Appearance but failed to file any response; that despite being repeatedly served with mention notices, the Defendant did not attend court or participate in proceedings that ensued, and that it was only after judgment was entered in default on 15/11/ 2024, almost two years later, that the Defendant sprung in action by filing the current application.
9. Mr. Wandati described the two-year delay as inexcusable and attributed it to the Defendant's negligence and indolence. He criticized the Defendant’s explanation of "administrative oversight" as vague and unsupported.
10. He further argued that the Plaintiff would suffer prejudice if the application were granted, as the Defendant had repeatedly failed to engage in the subsequent legal processes, including the mediation, despite being properly served.
11. In conclusion, Mr. Wandati contended that the Defendant is merely attempting to delay justice by avoiding meeting his obligation as contained in the subject professional undertaking. He insisted that the only way the Defendant could be released from the undertaking was through payment. Therefore, he urged the court to dismiss the application with costs.
12. In response to the issues raised in Mr. Wandati’s affidavit, the Defendant filed a further affidavit sworn on 26/2/2025 by himself. In the affidavit, the Defendant averred that his application raised serious legal issues that needed to be addressed on merit; that the application had been filed within a reasonable timeframe, and that he had provided a satisfactory explanation for the delay in responding to the suit.
13. The Defendant contested the Plaintiff’s claim that a professional undertaking had been breached. He asserted that at the material time, the undertaking had not crystallized and was, therefore, unenforceable. He added that the responsibility for settling the legal fees lay with one Eric Agbeko, not with him personally. He cited the case of Arthur K. Igeria t/a Igeria & Co. Advocates v. Michael Ndaiga [2017] eKLR to argue that for a professional undertaking to be enforceable, it must be clear, unambiguous, capable of performance, and contingent events must have occurred. He asserted that the undertaking in question failed to meet this threshold.
14. He further argued that the Plaintiff would not suffer any prejudice if his application were allowed, as the matter should be determined based on its merits.
15. The Application was canvassed by way of written submissions. The Defendant/Applicant’s submissions is dated 5/3/2025, whilst that of the Plaintiff’s submissions is dated 20/03/2025.
Analysis and determination:
16. I have considered the Defendant’s application filed herein, the response by the Plaintiff, and the submissions filed by the parties in support of their respective positions. The core issue for determination is whether the Defendant has made out a case for setting aside the ex parte judgment entered on 15/11/2024.
17. Order 10 Rule 11 of the Civil Procedure Rules, 2010 empowers the Court to set aside a default judgement entered under Order 10 (in default of Appearance or Defence) and any consequential decree or Order upon such terms as are just. It provides that: -
“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”
18. Principles of setting aside interlocutory judgments were well laid out in the case of Patel v East Africa Cargo Handling Services Ltd (1974) EA 75 as per Duffus P. who stated as follows:-
“The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgement 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 go to trial for adjudication.”
19. The Court of Appeal in the case of In James Kanyita Nderitu v Maries Philotas Ghika & Another [2016] eKLR, stated that: -
“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 appearances 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 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 such party is likely to suffer.”
20. From the pleadings and submissions filed herein, it is a common ground that the Plaintiff/Respondent instituted this suit on 23/11/2022 vide an Originating Summons dated 13/10/2022. It is equally not in dispute that the Defendant was duly served on 23/11/2022 and proceeded to enter an Appearance but failed to file a defence or to participate in the proceedings, including the mediation process that ensued. Consequently, judgment in default was entered on 15/11/2024.
21. The Defendant submitted that he has always been keen on defending the suit and that upon service of the Originating Summons in respect of the matter, he entered Appearance. That the delay or failure to file a response within the stipulated timelines was not intentional but was attributable to an administrative oversight and inadvertent mistake.
22. The Defendant’s reason for failure to file his defence within the stipulated timelines was what he referred to as “an administrative oversight and inadvertent mistake.” He did not, however, elaborate, nor did the Counsel substantiate the nature of the alleged administrative oversight.
23. Under order 10 rule 11 of the Civil Procedure Rules 2010, the court has the unfettered jurisdiction to set aside a default judgement in under circumstances that are just.
24. In the present case, it is clear that it was only after judgment in default was entered that the Defendant sprung into action by filing the instant application seeking to have the said judgment set aside. Evidence on record indicate that the Defendant has brought the instant application after a period of almost two years had lapsed from the time they were served with the Summons.
25. The record further indicates that even when the matter proceeded to mediation, the Defendant neglected to participate in the proceedings. Additionally that the Defendant was constantly served with mention notices but failed to participate.
26. Based on the foregoing, I find that the Defendant was indolent and deliberately failed to defend this suit. Although the Defendant provided a draft defence to the Plaintiff's Originating Summons, his reason for the delay in participating in this matter is vague and unsubstantiated.
27. In Rayat Trading Co. Limited -vs- Bank of Baroda & Tetei House Ltd [2018] eKLR the Court was clear that among the matters to taken into account by courts when considering application for setting aside a default judgment includes where the defendant has a real prospect of successfully defending the claim; or where it appears to the court that there is some other good reason why the judgment should be set aside.
28. In this case, it is this Court’s view that it would be prejudicial to the Plaintiff and the interest of justice if the court were to grant the instant application. I am satisfied that the Defendant was duly served with the summons by has not exhibited in the instant application, reasonable grounds he failed to file a response/defence to the Summons.
29. The upshot of the foregoing is that the Plaintiff has not made out a case to warrant this court to exercise its discretion to set aside the judgment in default.
30. The Defendant’s application filed herein and dated 10th December 2024 is therefore dismissed with costs to the Plaintiff.
31. The file is closed.
32. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
29TH DAY OF MAY, 2025
ADO MOSES
In the presence of:
Moses – C/A