REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. E083 OF 2025
MOBESH RATEMO ATUTI…………………………APPELLANT
VERSUS
REUBEN MANYANGE OTWORI………………..RESPONDENT
(Appeal from the Ruling and Order of the Small Claims Court at Kisii Hon. W.C.Keter (Adjudicator) in SCCCOMM/E346/2024 dated 4 th day of June, 2025)
BETWEEN
REUBEN MANYANGE OTWORI………………………CLAIMANT
VERSUS
MOBESH RATEMO ATUTI………………………RESPONDENT
JUDGEMENT
Background
1. This appeal is against the ruling and order of the Small Claims Court in Kisii SCCCOMM/E346/2024 by Hon. W.C.Keter (Adjudicator) dated 4 th June, 2025 in which the trial court dismissed an application brought by the Appellant under the provisions of Order 12 Rule 7 as read with Rule 3 of the Civil Procedure Rules seeking to stay and set aside the default judgment dated 20 th November, 2024 and the consequent decree.
2. The Respondent herein had filed a claim dated 14 th September, 2024 which was allegedly served upon the claimant herein on 25 th October, 2024.
3. The Appellant moved the trial court to set aside the default judgement on the ground that the Appellant was never been served with any pleadings in respect of the claim before the lower court. That the Appellant only learnt of the existence of the suit when he was arrested in execution of the decree on 18 th February, 2025 .
4. The other grounds in support of the application were that the Appellant had a good defence against the Respondent’s claim. He denied owing the claimant Ksh. 480, 000/= as alleged and maintained that it was his son Emmanuel Momanyi Ratemo who owed the claimant Ksh, 126, 000/= . This debt allegedly caused the appellant’s son to be arrested by the police and be placed in custody at Nyanchwa Police Station. It was asserted that members of a vigilante group had threatened to kill the appellant’s son if the respondent did not receive the sum of Ksh. 480, 000/= . The appellant avers that he had lost another son who was killed by the vigilante group and he capitulated to fear , coercion and threats when he signed an agreement acknowledging owing money to the respondent. It was also his assertion that there was no consideration for the agreement other than coercion and intimidation.
5. The Appellant also characterized the affidavit of service on record as a fraud that denied the Appellant an opportunity to be heard.
6. The Respondent on the other hand responded to the application through a replying affidavit dated 13 th May, 2025 where he produced an agreement dated 12 th July, 2024 in which the Appellant had allegedly agreed to pay his debt of Ksh. 480, 000/= before 15 th August, 2024.
7. The Respondent maintained that the agreement was signed voluntarily absent any form of coercion, threats, intimidation or duress at any organization, police station or institution.
8. Further, the Respondent deponed that the Respondent had been fully aware of the matter from the onset but had blatantly refused to settle and or participate in the proceedings. That he had been given an opportunity to defend the suit but had chosen not to do so.
9. The trial court in its ruling delivered on 4 th June, 2025 noted that when the matter came up for a second mention on 20 th November, 2024 the court was satisfied that the Appellant was duly served with pleadings entered default judgement in favour of the respondent as against the Appellant.
10. In its decision, the trial court held that the appellant was duly served at his Milimani home in Kisii on 25 th October, 2024 based on a return of service filed by Jackline Marisera Kebwaro who is a process server. It is noted in the ruling that the same process server had previously served the Appellant with other court processes at the same physical address.
11. The trial court ruled that the appellant had failed to proof the main ground in support of his motion which was an assertion that he had not been served. The Appellant was faulted for his failure to cross-examine the process server on her averments that she had duly served the appellant.
12. The Appellant being aggrieved by the adjudicator’s ruling duly filed his memorandum of appeal dated 16 th June, 2025 citing the grounds that trial court’s decision had been arrived at without any legal backing and on the wrong principles of law. That the Appellant’s submissions were disregarded by the trial court. It was the appellant’s ground of appeal that the decision of the trial court was arrived at without regard to the established rules touching on service of legal processes and against Order 5 Rule 22B of the Civil Procedure Rules. Lastly, that the trial magistrate erred in law by failing to take into account that the Appellant’s defence raised triable issues worth consideration on merit.
13. This matter proceeded undefended before the appellate court therefore only the Appellant filed his submissions.
APPELLANT’S SUBMISSIONS
14. The Appellant’s submissions points to the issue for determination to be whether service was effected, and if so, whether it was proper service. The appellant disputes being served with pleadings, summons to enter appearance or a notice of entry of judgement saying he only became aware of the suit when he arrested and brought before the court on 18 th February, 2025.
15. Counsel further submits that the Respondent’s relying affidavit did not address the issue of disputed service and that it only averred that the Appellant was aware of the claim but failed to elaborate how the Appellant became aware of the claim. Further, that the Respondent only alluded to the fact that the Appellant paid a sum of Ksh. 110, 000/= on 18 th February, 2025 and that as such the claim was assumed to have been admitted despite the fact that the said amount was paid to avoid being committed to civil jail.
16. The Appellant cites Order 5 Rule 15 of the Civil Procedure Rules which provides that a serving officer in all cases in which summons have been served shall swear or annex to the original summons an affidavit of service stating the time and manner in which the summons were served.
17. Counsel submitted that the Appellant having disputed service, it was expected that that the Respondent would adduce evidence of service. Noting that even though the respondent had filed a couple of returns of service effected by Jackline Marisera Kebwaro on 25 th October, 2024, 11 th November, 2024 and 20 th November, 2024; after allegedly contacting the Appellant on his telephone number 0104643393, no call logs were presented in proof of service.
18. It is submitted that the Respondent did not establish proper service and that the trial court erred in transferring the burden of proof to the Appellant.
19. Lastly, counsel submits that in addition to challenging service the Appellant demonstrated that he had a good defence which ought to be considered on merit as there was no consideration for the amount paid.
ISSUES FOR DETERMINATION
20. From the foregoing the issues that arise for determination are:
I. Whether or not the judgment entered against the Appellant on 20 th November 2024 was regular.
II. Whether the trial court exercised its discretion judiciously.
I) Whether or not the judgment entered against the Appellant on 20 th November 2024 was a regular.
21. It must be borne in mind 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 entry of a default judgment. Irregular default judgment, on the other hand, involve circumstances where there is failure to serve the summons to enter appearance and pleadings. A defendant that demonstrates improper or lack of service is entitled, as of right, under Order 10 rule 11 of the Civil Procedure Rules , to move the court to set aside the default judgment and to be allowed to defend the suit.
22. The court of appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) s held that:
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)
23. This court notes that the Appellant moved the trial court through an application under Order 12 Rule 7 of the Civil Procedure Rules, which relates to default judgement entered in default of appearance at the hearing. However, bearing in mind the duty of this court under Article 159 of the Constitution to do substantive justice without undue regard to procedural technicalities, the same will be considered as if it was brought under Order 10 rule 11 of the Civil Procedure Rules , which provides for judgments in default of appearance.
24. It is considerable that the Appellant concedes in his submissions that there was indeed an affidavit of service from a process server on record. In fact, the Appellant notes that there are several. However, of particular concern to this court is the affidavit of service dated 25 th October, 2024 sworn by Jackline Marisera Kebwaro, a court process server in which it is deponed that service was effected on 25 th October, 2024.
25. This court is satisfied, upon perusal of the affidavit of service, that proper service was effected upon the Appellant. Once a process server's affidavit that complies with Order 5 Rule 15 is filed, it is prima facie proof of service and discharges the plaintiff's evidential burden, and the burden then shifts to the party disputing it to rebut it by ordinarily seeking to cross-examine the deponent.
II) Whether the trial court exercised its discretion judiciously
26. Having found that the judgement therein was regular, the trial court still had wide and unfettered discretion to vary or set aside the default judgment. In the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) the court while citing the case of Mbogo v Shah [1968] EA 93 set down the principles upon which this discretion is exercised as follows:
“The discretion is in terms unconditional. The Courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence. It was suggested in argument that there is another rule that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”
27. It is a settled principle of law that an appellate court will not interfere with the exercise of the trial court's discretion unless it is satisfied that the court, in exercising its discretion, misdirected itself in some matter and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been injustice. This principle was established in Mbogo & Another v Shah [1968] EA 93 and reaffirmed in Pindoria Construction Ltd v Ironmongers Sanitaryware [2012] eKLR that an appellate court will not interfere with a trial court’s discretion unless the discretion was exercised on wrong principles or the decision is plainly wrong, resulting in injustice.
28. On the question of the explanation for why the suit had been undefended until judgement was entered in default of appearance, the Appellant offered none. He took no step in response to the claim, the mention notices, or the entry of judgment for a period of almost three months, until he was arrested in execution of the decree on 18th February 2025. No account was given before the trial court or in the submissions before this Court as to why he failed to defend the claim brought against him. If the appellant disputed the claim as vigorously as he now contends, he did not act sooner. This is a significant factor that militates against him.
29. On the question of if the defence raised triable issues, the Appellant's defence as annexed to the supporting affidavit as MRA-1 and dated 4 th March, 2024 , is that the sum of Ksh. 480,000/= claimed was not his debt but that of his son, Emmanuel Momanyi Ratemo, in the lesser sum of Ksh. 126,000/= . That he was coerced, under threat of physical harm by the police and members of a vigilante group to acknowledge owing the respondent Ksh. 480,000/= in order to secure the release of his son. That the appellant was told his son could be killed and having lost another son through killing by organized criminal gangs, the appellant signed the agreement in order to secure the release of his son . Taken at its face value, this is not a frivolous defence.
30. An allegation that a person was induced by threats to assume a debt not his own, without consideration, goes to the very validity of the agreement said to anchor the claim, and would meet the modest threshold for a triable issue meriting investigation.
31. This Court is satisfied that the trial court's ultimate refusal to set aside the judgement was arrived at on a misapplication of principle, for the reason that in its impugned ruling, the learned trial magistrate did not expressly grapple with the triable-issue question. An appellate court will interfere with the exercise of a trial court's discretion where it is warranted, if the court below misdirected itself or the decision is plainly wrong, resulting in injustice.
32. The upshot is that this appeal succeeds, the default judgment be and is hereby set aside, the appellant’s response to claim be and is hereby deemed as duly filed subject to payment of the requisite fees, if any. The claim is remitted back to the trial court for a hearing of the case on its merits. The matter to be heard by any adjudicator, other than Hon. Hon. W.C. Keter, Resident Magistrate. The appeal being undefended there will be no orders as to costs.
33. It is so ordered.
Judgment read, dated, signed and delivered virtually this 30th July, 2026
R. K.Koech
JUDGE
In the presence of;
Ms Bosire appearing virtually for the appellant
Roselyne Makali & Enock, court assistants
No appearance for the respondent.
Page 11Page 11JUDGEMENT KISII HCCA E083 OF 2025
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. E083 OF 2025
MOBESH RATEMO ATUTI…………………………APPELLANT
VERSUS
REUBEN MANYANGE OTWORI………………..RESPONDENT
(Appeal from the Ruling and Order of the Small Claims Court at Kisii Hon. W.C.Keter (Adjudicator) in SCCCOMM/E346/2024 dated 4 th day of June, 2025)
BETWEEN
REUBEN MANYANGE OTWORI………………………CLAIMANT
VERSUS
MOBESH RATEMO ATUTI………………………RESPONDENT
JUDGEMENT
Background
1. This appeal is against the ruling and order of the Small Claims Court in Kisii SCCCOMM/E346/2024 by Hon. W.C.Keter (Adjudicator) dated 4 th June, 2025 in which the trial court dismissed an application brought by the Appellant under the provisions of Order 12 Rule 7 as read with Rule 3 of the Civil Procedure Rules seeking to stay and set aside the default judgment dated 20 th November, 2024 and the consequent decree.
2. The Respondent herein had filed a claim dated 14 th September, 2024 which was allegedly served upon the claimant herein on 25 th October, 2024.
3. The Appellant moved the trial court to set aside the default judgement on the ground that the Appellant was never been served with any pleadings in respect of the claim before the lower court. That the Appellant only learnt of the existence of the suit when he was arrested in execution of the decree on 18 th February, 2025 .
4. The other grounds in support of the application were that the Appellant had a good defence against the Respondent’s claim. He denied owing the claimant Ksh. 480, 000/= as alleged and maintained that it was his son Emmanuel Momanyi Ratemo who owed the claimant Ksh, 126, 000/= . This debt allegedly caused the appellant’s son to be arrested by the police and be placed in custody at Nyanchwa Police Station. It was asserted that members of a vigilante group had threatened to kill the appellant’s son if the respondent did not receive the sum of Ksh. 480, 000/= . The appellant avers that he had lost another son who was killed by the vigilante group and he capitulated to fear , coercion and threats when he signed an agreement acknowledging owing money to the respondent. It was also his assertion that there was no consideration for the agreement other than coercion and intimidation.
5. The Appellant also characterized the affidavit of service on record as a fraud that denied the Appellant an opportunity to be heard.
6. The Respondent on the other hand responded to the application through a replying affidavit dated 13 th May, 2025 where he produced an agreement dated 12 th July, 2024 in which the Appellant had allegedly agreed to pay his debt of Ksh. 480, 000/= before 15 th August, 2024.
7. The Respondent maintained that the agreement was signed voluntarily absent any form of coercion, threats, intimidation or duress at any organization, police station or institution.
8. Further, the Respondent deponed that the Respondent had been fully aware of the matter from the onset but had blatantly refused to settle and or participate in the proceedings. That he had been given an opportunity to defend the suit but had chosen not to do so.
9. The trial court in its ruling delivered on 4 th June, 2025 noted that when the matter came up for a second mention on 20 th November, 2024 the court was satisfied that the Appellant was duly served with pleadings entered default judgement in favour of the respondent as against the Appellant.
10. In its decision, the trial court held that the appellant was duly served at his Milimani home in Kisii on 25 th October, 2024 based on a return of service filed by Jackline Marisera Kebwaro who is a process server. It is noted in the ruling that the same process server had previously served the Appellant with other court processes at the same physical address.
11. The trial court ruled that the appellant had failed to proof the main ground in support of his motion which was an assertion that he had not been served. The Appellant was faulted for his failure to cross-examine the process server on her averments that she had duly served the appellant.
12. The Appellant being aggrieved by the adjudicator’s ruling duly filed his memorandum of appeal dated 16 th June, 2025 citing the grounds that trial court’s decision had been arrived at without any legal backing and on the wrong principles of law. That the Appellant’s submissions were disregarded by the trial court. It was the appellant’s ground of appeal that the decision of the trial court was arrived at without regard to the established rules touching on service of legal processes and against Order 5 Rule 22B of the Civil Procedure Rules. Lastly, that the trial magistrate erred in law by failing to take into account that the Appellant’s defence raised triable issues worth consideration on merit.
13. This matter proceeded undefended before the appellate court therefore only the Appellant filed his submissions.
APPELLANT’S SUBMISSIONS
14. The Appellant’s submissions points to the issue for determination to be whether service was effected, and if so, whether it was proper service. The appellant disputes being served with pleadings, summons to enter appearance or a notice of entry of judgement saying he only became aware of the suit when he arrested and brought before the court on 18 th February, 2025.
15. Counsel further submits that the Respondent’s relying affidavit did not address the issue of disputed service and that it only averred that the Appellant was aware of the claim but failed to elaborate how the Appellant became aware of the claim. Further, that the Respondent only alluded to the fact that the Appellant paid a sum of Ksh. 110, 000/= on 18 th February, 2025 and that as such the claim was assumed to have been admitted despite the fact that the said amount was paid to avoid being committed to civil jail.
16. The Appellant cites Order 5 Rule 15 of the Civil Procedure Rules which provides that a serving officer in all cases in which summons have been served shall swear or annex to the original summons an affidavit of service stating the time and manner in which the summons were served.
17. Counsel submitted that the Appellant having disputed service, it was expected that that the Respondent would adduce evidence of service. Noting that even though the respondent had filed a couple of returns of service effected by Jackline Marisera Kebwaro on 25 th October, 2024, 11 th November, 2024 and 20 th November, 2024; after allegedly contacting the Appellant on his telephone number 0104643393, no call logs were presented in proof of service.
18. It is submitted that the Respondent did not establish proper service and that the trial court erred in transferring the burden of proof to the Appellant.
19. Lastly, counsel submits that in addition to challenging service the Appellant demonstrated that he had a good defence which ought to be considered on merit as there was no consideration for the amount paid.
ISSUES FOR DETERMINATION
20. From the foregoing the issues that arise for determination are:
I. Whether or not the judgment entered against the Appellant on 20 th November 2024 was regular.
II. Whether the trial court exercised its discretion judiciously.
I) Whether or not the judgment entered against the Appellant on 20 th November 2024 was a regular.
21. It must be borne in mind 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 entry of a default judgment. Irregular default judgment, on the other hand, involve circumstances where there is failure to serve the summons to enter appearance and pleadings. A defendant that demonstrates improper or lack of service is entitled, as of right, under Order 10 rule 11 of the Civil Procedure Rules , to move the court to set aside the default judgment and to be allowed to defend the suit.
22. The court of appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) s held that:
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)
23. This court notes that the Appellant moved the trial court through an application under Order 12 Rule 7 of the Civil Procedure Rules, which relates to default judgement entered in default of appearance at the hearing. However, bearing in mind the duty of this court under Article 159 of the Constitution to do substantive justice without undue regard to procedural technicalities, the same will be considered as if it was brought under Order 10 rule 11 of the Civil Procedure Rules , which provides for judgments in default of appearance.
24. It is considerable that the Appellant concedes in his submissions that there was indeed an affidavit of service from a process server on record. In fact, the Appellant notes that there are several. However, of particular concern to this court is the affidavit of service dated 25 th October, 2024 sworn by Jackline Marisera Kebwaro, a court process server in which it is deponed that service was effected on 25 th October, 2024.
25. This court is satisfied, upon perusal of the affidavit of service, that proper service was effected upon the Appellant. Once a process server's affidavit that complies with Order 5 Rule 15 is filed, it is prima facie proof of service and discharges the plaintiff's evidential burden, and the burden then shifts to the party disputing it to rebut it by ordinarily seeking to cross-examine the deponent.
II) Whether the trial court exercised its discretion judiciously
26. Having found that the judgement therein was regular, the trial court still had wide and unfettered discretion to vary or set aside the default judgment. In the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) the court while citing the case of Mbogo v Shah [1968] EA 93 set down the principles upon which this discretion is exercised as follows:
“The discretion is in terms unconditional. The Courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence. It was suggested in argument that there is another rule that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”
27. It is a settled principle of law that an appellate court will not interfere with the exercise of the trial court's discretion unless it is satisfied that the court, in exercising its discretion, misdirected itself in some matter and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been injustice. This principle was established in Mbogo & Another v Shah [1968] EA 93 and reaffirmed in Pindoria Construction Ltd v Ironmongers Sanitaryware [2012] eKLR that an appellate court will not interfere with a trial court’s discretion unless the discretion was exercised on wrong principles or the decision is plainly wrong, resulting in injustice.
28. On the question of the explanation for why the suit had been undefended until judgement was entered in default of appearance, the Appellant offered none. He took no step in response to the claim, the mention notices, or the entry of judgment for a period of almost three months, until he was arrested in execution of the decree on 18th February 2025. No account was given before the trial court or in the submissions before this Court as to why he failed to defend the claim brought against him. If the appellant disputed the claim as vigorously as he now contends, he did not act sooner. This is a significant factor that militates against him.
29. On the question of if the defence raised triable issues, the Appellant's defence as annexed to the supporting affidavit as MRA-1 and dated 4 th March, 2024 , is that the sum of Ksh. 480,000/= claimed was not his debt but that of his son, Emmanuel Momanyi Ratemo, in the lesser sum of Ksh. 126,000/= . That he was coerced, under threat of physical harm by the police and members of a vigilante group to acknowledge owing the respondent Ksh. 480,000/= in order to secure the release of his son. That the appellant was told his son could be killed and having lost another son through killing by organized criminal gangs, the appellant signed the agreement in order to secure the release of his son . Taken at its face value, this is not a frivolous defence.
30. An allegation that a person was induced by threats to assume a debt not his own, without consideration, goes to the very validity of the agreement said to anchor the claim, and would meet the modest threshold for a triable issue meriting investigation.
31. This Court is satisfied that the trial court's ultimate refusal to set aside the judgement was arrived at on a misapplication of principle, for the reason that in its impugned ruling, the learned trial magistrate did not expressly grapple with the triable-issue question. An appellate court will interfere with the exercise of a trial court's discretion where it is warranted, if the court below misdirected itself or the decision is plainly wrong, resulting in injustice.
32. The upshot is that this appeal succeeds, the default judgment be and is hereby set aside, the appellant’s response to claim be and is hereby deemed as duly filed subject to payment of the requisite fees, if any. The claim is remitted back to the trial court for a hearing of the case on its merits. The matter to be heard by any adjudicator, other than Hon. Hon. W.C. Keter, Resident Magistrate. The appeal being undefended there will be no orders as to costs.
33. It is so ordered.
Judgment read, dated, signed and delivered virtually this 30th July, 2026
R. K.Koech
JUDGE
In the presence of;
Ms Bosire appearing virtually for the appellant
Roselyne Makali & Enock, court assistants
No appearance for the respondent.
Page 11Page 11JUDGEMENT KISII HCCA E083 OF 2025