1. The appeal herein through a memorandum of appeal dated 8/1/2024 asks for orders that the entire ruling and order made on 1st December 2023 be set aside and substituted with an order allowing the appellant’s Notice of Motion dated 13th July 2023 with costs, that the costs of the appeal be granted to the appellant and any other order that the court may deem fit and just to grant.
2. The impugned ruling dismissed an application dated 13/7/2023 by the appellant herein seeking to set aside a regular default final judgment entered on 9/5/2023 for the respondent herein against the appellant. In the said ruling the trial court found that the appellant had been duly served with summons to enter appearance but failed to enter appearance and file defence in time.
3. The appellant was dissatisfied with that decision and has filed the present appeal based on eight grounds that can be summarized as follows:
a. that the learned trial magistrate erred in law and in fact by failing to appreciate that the appellant had offered a reasonable explanation for its failure to enter appearance or file a defence within the prescribed period.
b. that the learned trial magistrate erred in law and in fact in considering the appellant’s application subjectively and thereby occasioning a miscarriage of justice.
c. that the learned trial magistrate erred in law and in fact in failing to take into consideration all necessary factors in deciding the application and thereby coming to a wrong and unjust conclusion.
d. that the learned trial magistrate erred in law and in fact in failing to appreciate that failing to set aside the ex-parte judgment amounted to condemning the appellant unheard which is contrary to the right to fair administrative action under Article 47 of the constitution and the right to fair hearing under Article 50 of the constitution.
e. that the learned trial magistrate erred in law and in fact in failing to appreciate that by failing to set aside the ex-parte judgment, he was effectively denying the appellant its constitutional right to be heard before being condemned which was against the rules of natural justice and the overriding objective of the Civil Procedure Act with respect to facilitating a just and fair resolution of disputes.
f. that the learned trial magistrate exercised his discreation wrongly and thereby occasioned injustice to the appellant.
g. that the ruling was against Article 159 of the constitution.
h. that the learned trial magistrate erred in law and in fact in failing to consider all the grounds of the application and thereby arrived at a wrong decision.
4. The appeal was canvassed by way of written submissions. Learned counsels for both parties filed their respective submissions urging their clients’ cases.
5. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held 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 considered the trial court record, the grounds of appeal as set out in the memorandum, the submissions for and against this appeal and cited cases. The issue for determination is whether the learned trial Magistrate erred in failing to set aside the default judgment and the consequential orders thereto.
7. 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.”
8. 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).
9. In exercising its discretion under this rule, the court should be guided by the demands of rendering justice and therefore the discretion should be exercised judiciously.
10. 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 other. 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.”
11. I consider this decision to summarize comprehensively the factors to consider while exercising the discretion whether or not to set aside a default judgment.
12. At the trial court, the appellant put up a feeble attempt to deny service, contending that when the court documents were sent to him by the advocate for the respondent there was nothing to indicate the same were sent by way of service upon the company. The learned trial magistrate considered that issue and found that the affidavit of service by the respondent sworn on 17/3/2023 was very detailed on how the service of summons was effected after the two parties agreed on the mode of service. I am satisfied that on the material on record, that finding by the learned trial magistrate was correct.
13. The appellant in this appeal now readily concedes that it was served with summons to enter appearance but now moves to its second reason for failing to enter appearance and file defence to be that it was waiting for the respondent’s advocate to provide him with the evidence to support the respondent’s claim against it. Again, that is a feeble reason and one that could not have caused the trial court to exercise its discretion in the appellant’s favour. The appellant having received the summons to enter appearance and plaint and the supporting documents, the law requires that it should enter appearance within 15 days. Whether or not any other supporting documents would be supplied was an issue to be addressed after it complied with the law. it failed to comply and judgment I default was entered. The submission by learned counsel that the failure to enter appearance was sufficiently explained therefore has no merit and has to be rejected.
14. I find that the default judgment was rightfully entered by the trial court. I consequently find that a regular default judgment was entered because in spite of the appellant being duly served with summons to enter appearance and plaint failed to enter appearance and to file defence in time as stipulated under the law.
15. The appellant avers that he has a constitutional right to be heard on the merits. I do not think anybody has denied him that right. He was served with summons to enter appearance but failed to do so. The law (Order 10 Rule 9 CPR) provides that where a defendant fails to enter appearance in time as stipulated the plaintiff is entitled to set down the suit for hearing. The Constitution in Article 50 on fair hearing accords every party a right to a fair hearing which includes the right to be heard as provided under Article 50(2)(k) to adduce and challenge evidence. At the same time the Constitution in Article 50(2)(e) for the right to have the trial begin and conclude without unreasonable delay. This means that cases have to be heard expeditiously. So that the right to expeditious hearing is actualized by the CPR providing for timelines within which a party should enter appearance and file defence with consequences of failing to abide being a default judgment.
16. The foregoing position is well explained in the case of Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji Civil Application No. Nai. 179 of 1998 where the Court of Appeal held that:
“Whereas the right to be heard is a basic natural-justice concept and ought not to be taken away lightly, looking at the record before the court, the court is not impressed by the point that the applicant was denied the right to defend itself. The applicants were notified on every step the respondents proposed to take in the litigation but on none of these occasions did their counsel attend. Clearly the applicant was given a chance to be heard and the court is not convinced that the issue of failure by the High Court to hear the applicant will be such an arguable point in the appeal. The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilised, then the only point on which the party not utilising the opportunity can be heard is why he did not utilise it.”
17. Consequently, I find that the appellant’s plea that its rights to a fair hearing and/or fair administrative action were breached for its own failure to enter appearance and file a defence in time as stipulated in law is without merit.
18. Perhaps, the issue that needs to be considered is whether the failure to enter appearance and file defence is excusable and if so whether the respondent can be compensated by an award of costs? I will consider this issue as the last point.
19. The next issue is whether or not the court should set aside the default judgment and give the appellant an opportunity 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 well guided by these decisions.
20. 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”.
21. 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 like all other discretion it should be exercised judiciously.
22. 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.”
23. In the present case, the appellant annexed a draft defence to the affidavit supporting the application to set aside. In the defence, it completely denies that it entered into any agreement with the appellant for the supply of the items the subject of the suit for which the claim for payment is based.
24. The learned trial magistrate did not consider the draft statement of defence filed by the appellant.
25. Leaned counsel for the respondent submits that the draft defence is a mere denial which cannot amount to a challenge to the claim. He submits further that the respondent produced various invoices and the appellant’s statement of account in support of the claim and that leads to the inescapable conclusion that the appellant is indebted to the respondent.
26. 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.”
27. The claim by the respondent herein was for payment of goods, that is, hardware equipment, supplied and delivered to the appellant pursuant to a business agreement between the parties. The appellant contends that there was no such business agreement and wants the respondent to produce the same together with orders made by the appellant. An agreement to supply goods need not be made in writing. On its part, before the trial court, the appellant’s director deposed in the supporting affidavit that after it had received documents from the respondent’s advocates he concluded and informed the advocate that the appellant had no agreement with the respondent and if he was in possession of the same he should forward to the appellant for verification and record. He insisted on being provided with the documents evidencing supply and receipt of the goods. This was never done. The appellant maintains through the draft defence that it never entered into an agreement with the respondent and denies all the allegations in the plaint by the respondent.
28. I have looked at the plaint dated 22/8/2022 and the accompanying witness statement of Pravin Manji Pindoria, a director of the respondent as well as the accompanying documents in support of the claim. Among the documents are two demand letters, one dated 22/2/2022 and the other dated 20/4/2022 from the respondent to the appellant. There is not shown by the draft defence or supporting affidavit that it ever responded to the demand notices. There is no indication by the appellant that for any reason, it never received these demand notices. The only conclusion is that it did receive them but failed to respond. It is therefore an afterthought for the appellant to come to court after failing to enter appearance and file defence on time and allege that the respondent should show it an agreement and orders made for the goods supplied.
29. 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 filing the application 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.”
30. 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.”
31. No doubt, the appellant herein made a blunder in failing to enter appearance and file a defence in time. It was only awakened to action when the respondent served upon it the notice to execute. The respondent has shown it documents that support the respondent’s case but the appellant maintains that there was no agreement to supply the alleged goods and that there was no delivery of the goods to it.
32. This is not the time for the court to look at the merits of the defence proposed to be advanced by the appellant. At this time the court is only concerned with whether the defence has some merit that calls for its consideration at the trial. I think denial of existence of the contract to supply the goods and that any such goods were delivered are issues worth considering at the trial. If not, the respondent still has an opportunity to supply the documents asked for by the appellant through an application for summary judgment. There, the court will have an opportunity to consider the merit of the defence in view of those documents. In the event the documents are not available then the issue whether the agreement was oral or through trade practice between the parties will again have to be properly considered at the trial.
33. Consequently, I find that had the trial magistrate considered the issue of whether the defence on record had merit or not perhaps he would have come to a different conclusion from the one he did to dismiss the application. I therefore find that in failing to consider the draft defence on record, the learned trial magistrate failed to apply the correct principles in the exercise of his discretion in considering the application for setting aside a default judgment.
34. 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.
35. Consequently, the appeal herein is allowed and the ruling of the learned trial magistrate dated 1/12/2023 is hereby set aside the substituted with an order granting the appellant conditional leave to enter appearance and file defence as follows: -
a) The appellant to deposit the entire the decretal sum of KShs 1,318,319/= as at 22/6/2023 in the trial court within 15 days from today.
b) The appellant herein (the defendant/applicant in the trial court) to pay the respondent herein (plaintiff/respondent in the trial court) all the thro-away costs pursuant and incidental to the entry of the default judgment therein assessed at KShs. 20,000/= before the matter comes up for pre-trial directions and in any case within 15 days from today.
c) The appellant to file a statement of defence at the same time of complying with Orders 1 and 2 above.
d) The matter will then proceed as per the provisions of the Civil Procedure Rules.
e) In default of any of the conditions applicable to the appellant herein/defendant in the suit before the trial court, above, this appeal will be deemed as dismissed from today and the respondent herein/plaintiff in the trial court will be at liberty to proceed with execution.
36. There are no orders for costs of the appeal.
37. Orders accordingly.
Written, dated and signed on this 28th day of July 2024.
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams this 28th day of July, 2025.
In the presence of:
Wangui (Ms) for the Appellant.
Ndoigi (Ms) for the Respondent.
Hud: Court assistant
2. The impugned ruling dismissed an application dated 13/7/2023 by the appellant herein seeking to set aside a regular default final judgment entered on 9/5/2023 for the respondent herein against the appellant. In the said ruling the trial court found that the appellant had been duly served with summons to enter appearance but failed to enter appearance and file defence in time.
3. The appellant was dissatisfied with that decision and has filed the present appeal based on eight grounds that can be summarized as follows:
a. that the learned trial magistrate erred in law and in fact by failing to appreciate that the appellant had offered a reasonable explanation for its failure to enter appearance or file a defence within the prescribed period.
b. that the learned trial magistrate erred in law and in fact in considering the appellant’s application subjectively and thereby occasioning a miscarriage of justice.
c. that the learned trial magistrate erred in law and in fact in failing to take into consideration all necessary factors in deciding the application and thereby coming to a wrong and unjust conclusion.
d. that the learned trial magistrate erred in law and in fact in failing to appreciate that failing to set aside the ex-parte judgment amounted to condemning the appellant unheard which is contrary to the right to fair administrative action under Article 47 of the constitution and the right to fair hearing under Article 50 of the constitution.
e. that the learned trial magistrate erred in law and in fact in failing to appreciate that by failing to set aside the ex-parte judgment, he was effectively denying the appellant its constitutional right to be heard before being condemned which was against the rules of natural justice and the overriding objective of the Civil Procedure Act with respect to facilitating a just and fair resolution of disputes.
f. that the learned trial magistrate exercised his discreation wrongly and thereby occasioned injustice to the appellant.
g. that the ruling was against Article 159 of the constitution.
h. that the learned trial magistrate erred in law and in fact in failing to consider all the grounds of the application and thereby arrived at a wrong decision.
4. The appeal was canvassed by way of written submissions. Learned counsels for both parties filed their respective submissions urging their clients’ cases.
5. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held 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 considered the trial court record, the grounds of appeal as set out in the memorandum, the submissions for and against this appeal and cited cases. The issue for determination is whether the learned trial Magistrate erred in failing to set aside the default judgment and the consequential orders thereto.
7. 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.”
8. 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).
9. In exercising its discretion under this rule, the court should be guided by the demands of rendering justice and therefore the discretion should be exercised judiciously.
10. 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 other. 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.”
11. I consider this decision to summarize comprehensively the factors to consider while exercising the discretion whether or not to set aside a default judgment.
12. At the trial court, the appellant put up a feeble attempt to deny service, contending that when the court documents were sent to him by the advocate for the respondent there was nothing to indicate the same were sent by way of service upon the company. The learned trial magistrate considered that issue and found that the affidavit of service by the respondent sworn on 17/3/2023 was very detailed on how the service of summons was effected after the two parties agreed on the mode of service. I am satisfied that on the material on record, that finding by the learned trial magistrate was correct.
13. The appellant in this appeal now readily concedes that it was served with summons to enter appearance but now moves to its second reason for failing to enter appearance and file defence to be that it was waiting for the respondent’s advocate to provide him with the evidence to support the respondent’s claim against it. Again, that is a feeble reason and one that could not have caused the trial court to exercise its discretion in the appellant’s favour. The appellant having received the summons to enter appearance and plaint and the supporting documents, the law requires that it should enter appearance within 15 days. Whether or not any other supporting documents would be supplied was an issue to be addressed after it complied with the law. it failed to comply and judgment I default was entered. The submission by learned counsel that the failure to enter appearance was sufficiently explained therefore has no merit and has to be rejected.
14. I find that the default judgment was rightfully entered by the trial court. I consequently find that a regular default judgment was entered because in spite of the appellant being duly served with summons to enter appearance and plaint failed to enter appearance and to file defence in time as stipulated under the law.
15. The appellant avers that he has a constitutional right to be heard on the merits. I do not think anybody has denied him that right. He was served with summons to enter appearance but failed to do so. The law (Order 10 Rule 9 CPR) provides that where a defendant fails to enter appearance in time as stipulated the plaintiff is entitled to set down the suit for hearing. The Constitution in Article 50 on fair hearing accords every party a right to a fair hearing which includes the right to be heard as provided under Article 50(2)(k) to adduce and challenge evidence. At the same time the Constitution in Article 50(2)(e) for the right to have the trial begin and conclude without unreasonable delay. This means that cases have to be heard expeditiously. So that the right to expeditious hearing is actualized by the CPR providing for timelines within which a party should enter appearance and file defence with consequences of failing to abide being a default judgment.
16. The foregoing position is well explained in the case of Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji Civil Application No. Nai. 179 of 1998 where the Court of Appeal held that:
“Whereas the right to be heard is a basic natural-justice concept and ought not to be taken away lightly, looking at the record before the court, the court is not impressed by the point that the applicant was denied the right to defend itself. The applicants were notified on every step the respondents proposed to take in the litigation but on none of these occasions did their counsel attend. Clearly the applicant was given a chance to be heard and the court is not convinced that the issue of failure by the High Court to hear the applicant will be such an arguable point in the appeal. The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilised, then the only point on which the party not utilising the opportunity can be heard is why he did not utilise it.”
17. Consequently, I find that the appellant’s plea that its rights to a fair hearing and/or fair administrative action were breached for its own failure to enter appearance and file a defence in time as stipulated in law is without merit.
18. Perhaps, the issue that needs to be considered is whether the failure to enter appearance and file defence is excusable and if so whether the respondent can be compensated by an award of costs? I will consider this issue as the last point.
19. The next issue is whether or not the court should set aside the default judgment and give the appellant an opportunity 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 well guided by these decisions.
20. 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”.
21. 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 like all other discretion it should be exercised judiciously.
22. 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.”
23. In the present case, the appellant annexed a draft defence to the affidavit supporting the application to set aside. In the defence, it completely denies that it entered into any agreement with the appellant for the supply of the items the subject of the suit for which the claim for payment is based.
24. The learned trial magistrate did not consider the draft statement of defence filed by the appellant.
25. Leaned counsel for the respondent submits that the draft defence is a mere denial which cannot amount to a challenge to the claim. He submits further that the respondent produced various invoices and the appellant’s statement of account in support of the claim and that leads to the inescapable conclusion that the appellant is indebted to the respondent.
26. 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.”
27. The claim by the respondent herein was for payment of goods, that is, hardware equipment, supplied and delivered to the appellant pursuant to a business agreement between the parties. The appellant contends that there was no such business agreement and wants the respondent to produce the same together with orders made by the appellant. An agreement to supply goods need not be made in writing. On its part, before the trial court, the appellant’s director deposed in the supporting affidavit that after it had received documents from the respondent’s advocates he concluded and informed the advocate that the appellant had no agreement with the respondent and if he was in possession of the same he should forward to the appellant for verification and record. He insisted on being provided with the documents evidencing supply and receipt of the goods. This was never done. The appellant maintains through the draft defence that it never entered into an agreement with the respondent and denies all the allegations in the plaint by the respondent.
28. I have looked at the plaint dated 22/8/2022 and the accompanying witness statement of Pravin Manji Pindoria, a director of the respondent as well as the accompanying documents in support of the claim. Among the documents are two demand letters, one dated 22/2/2022 and the other dated 20/4/2022 from the respondent to the appellant. There is not shown by the draft defence or supporting affidavit that it ever responded to the demand notices. There is no indication by the appellant that for any reason, it never received these demand notices. The only conclusion is that it did receive them but failed to respond. It is therefore an afterthought for the appellant to come to court after failing to enter appearance and file defence on time and allege that the respondent should show it an agreement and orders made for the goods supplied.
29. 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 filing the application 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.”
30. 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.”
31. No doubt, the appellant herein made a blunder in failing to enter appearance and file a defence in time. It was only awakened to action when the respondent served upon it the notice to execute. The respondent has shown it documents that support the respondent’s case but the appellant maintains that there was no agreement to supply the alleged goods and that there was no delivery of the goods to it.
32. This is not the time for the court to look at the merits of the defence proposed to be advanced by the appellant. At this time the court is only concerned with whether the defence has some merit that calls for its consideration at the trial. I think denial of existence of the contract to supply the goods and that any such goods were delivered are issues worth considering at the trial. If not, the respondent still has an opportunity to supply the documents asked for by the appellant through an application for summary judgment. There, the court will have an opportunity to consider the merit of the defence in view of those documents. In the event the documents are not available then the issue whether the agreement was oral or through trade practice between the parties will again have to be properly considered at the trial.
33. Consequently, I find that had the trial magistrate considered the issue of whether the defence on record had merit or not perhaps he would have come to a different conclusion from the one he did to dismiss the application. I therefore find that in failing to consider the draft defence on record, the learned trial magistrate failed to apply the correct principles in the exercise of his discretion in considering the application for setting aside a default judgment.
34. 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.
35. Consequently, the appeal herein is allowed and the ruling of the learned trial magistrate dated 1/12/2023 is hereby set aside the substituted with an order granting the appellant conditional leave to enter appearance and file defence as follows: -
a) The appellant to deposit the entire the decretal sum of KShs 1,318,319/= as at 22/6/2023 in the trial court within 15 days from today.
b) The appellant herein (the defendant/applicant in the trial court) to pay the respondent herein (plaintiff/respondent in the trial court) all the thro-away costs pursuant and incidental to the entry of the default judgment therein assessed at KShs. 20,000/= before the matter comes up for pre-trial directions and in any case within 15 days from today.
c) The appellant to file a statement of defence at the same time of complying with Orders 1 and 2 above.
d) The matter will then proceed as per the provisions of the Civil Procedure Rules.
e) In default of any of the conditions applicable to the appellant herein/defendant in the suit before the trial court, above, this appeal will be deemed as dismissed from today and the respondent herein/plaintiff in the trial court will be at liberty to proceed with execution.
36. There are no orders for costs of the appeal.
37. Orders accordingly.
Written, dated and signed on this 28th day of July 2024.
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams this 28th day of July, 2025.
In the presence of:
Wangui (Ms) for the Appellant.
Ndoigi (Ms) for the Respondent.
Hud: Court assistant