Background
1. This is an appeal from a ruling of the Small Claims court which declined to set aside default judgement entered on 20th June 2024. The two applications were dated 1st and 5th July 2024.
2. The two Application was based on the following grounds:
(i) That the Appellant’s Director was only served through email while he was outside the Country.
(ii) That the Appellant’s Director only learnt of the existence of the case on 26th June 2024 upon the return of its managing director and upon reading his emails.
(iii) That being the only employee of the company who could access the company’s email the same could not be detected earlier.
(iv) That upon discovery the Appellants instructed its advocate to enter appearance who established that there was already a default judgement.
(v) That the Appellants have a good and reasonable defence and it is only fair and just that it be put on record to enable the Honourable Court reach a just and fair finding based on the merit of the matter.
(vi) That three-week absence from the country has placed the Appellant in a disadvantage position as it was completely locked out of the trial process.
(vii) That the Applications were made without any unreasonable delay and will not occasion any prejudice to the Respondents herein.
3. The Application at the Trial Court was opposed vide a Replying affidavit by David Kihiko Njau. He raised the fact that the Appellant’s herein did not exhibit any evidence that the Director was outside the country.
4. Mr. Njau averred that the Appellants herein confirmed that indeed the email was received and that there is no indication why the official email was read on 4th June 2024 and was read 24days later on 26th June 2024 noting that this was an official email.
5. He further averred that the Appellants herein are not deserving of the orders sought since the application was not made in good faith and that failure by the Appellants to file their defence on time was clearly not inadvertent but rather show lack of seriousness in the matter and the court process.
Ruling of the Trial Court.
6. The Trial court analysed the pleadings and submissions and held that the Appellants herein have not demonstrated any sufficient, adequate and viable reasons to warrant the exercise of the Courts discretion to set aside the default judgement.
The Appeal.
7. The Appellants aggrieved by the above ruling, filed two appeals, the grounds of appeal are contained in the memorandum of appeal dated 11th September 2024 in Civil Appeal No. 1047 of 2024 and memorandum of appeal dated 10th September 2024 in 1062 of 2024. The two appeals were later consolidated and will be considered together.
8. The Appellants among other grounds fault the Trial Court for dismissing their applications which amounts to denying them an opportunity of being heard.
The Submissions
9. Appellants filed their written submissions dated 18th December 2025 and 2nd September 2025. They both faulted the Trial court for failing to judiciously and exercise her discretion contrary to overriding objective of civil litigation.
10. Both Appellants submitted the Trial Court erred in declining to set aside an interlocutory judgement which will perpetuate miscarriage of justice.
11. The Respondent on the other hand submitted that the Trial court exercised its judicial discretion well given the facts of the case and the reasons advanced by the Appellant’s in their application were not supported.
Analysis and determination.
12. From the memorandum of appeals and the submission of the parties, the main issue for determination is whether the learned Magistrate’s Court exercised its discretion judiciously in dismissing the application before it.
13. From the study of the appeal and all the documents the facts are not contested, the Appellant’s informed the Trial Court in their application to set aside the default judgement that the main reason why their failed to defend their case is that the Director learnt of the existence of the case on 24th June 2024 upon returning of its managing director and upon reading of his emails.
14. From the supporting affidavit of Mr. Benjamin Ngonde Matheka dated 1st July 2024, he averred that he was the only employee of the company who could access the company’s email and that the three-week absence from the Country occasioned the lapse.
15. It is worth noting that there was no evidence availed before the trial court to support the above averments that the Director was indeed outside the country. Therefore, the Appellants failed to support their main ground of failing to defend the suit. The Appellants ought to have supported the averment with supporting documentations at the Trial Court.
16. This Court having evaluated the appeal, it is this Courts finding the there is no sufficient reason to enable overturn the Lower Courts ruling. The Trial Court in my view exercised its discretions properly. Speaking to the foregoing, the Court in Mbogo and Another -vs- Shah [1968] E.A. 93, was observed thus;
….. an appellate Court should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in law or acted on wrong principles or that he has allowed extraneous matters to influence his decision or that he has failed to take into consideration a matter which he should have taken into consideration and as a result thereof arrived at a wrong conclusion.
17. This Court is persuaded that the Learned magistrate in her ruling dated 12th August 2024 evaluated law and facts well and the decision to dismiss the application was proper.
18. This Court, therefore, finds there is no legal basis to interfere with the Lower Courts finding. The appeal is unmerited hence dismissed with costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 19th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No appearance for the 1st Appellant.
Ochieng Learned Counsel for the 2nd Appellant.
No Appearance for the Respondent.
Michael :Court Assistant.
1. This is an appeal from a ruling of the Small Claims court which declined to set aside default judgement entered on 20th June 2024. The two applications were dated 1st and 5th July 2024.
2. The two Application was based on the following grounds:
(i) That the Appellant’s Director was only served through email while he was outside the Country.
(ii) That the Appellant’s Director only learnt of the existence of the case on 26th June 2024 upon the return of its managing director and upon reading his emails.
(iii) That being the only employee of the company who could access the company’s email the same could not be detected earlier.
(iv) That upon discovery the Appellants instructed its advocate to enter appearance who established that there was already a default judgement.
(v) That the Appellants have a good and reasonable defence and it is only fair and just that it be put on record to enable the Honourable Court reach a just and fair finding based on the merit of the matter.
(vi) That three-week absence from the country has placed the Appellant in a disadvantage position as it was completely locked out of the trial process.
(vii) That the Applications were made without any unreasonable delay and will not occasion any prejudice to the Respondents herein.
3. The Application at the Trial Court was opposed vide a Replying affidavit by David Kihiko Njau. He raised the fact that the Appellant’s herein did not exhibit any evidence that the Director was outside the country.
4. Mr. Njau averred that the Appellants herein confirmed that indeed the email was received and that there is no indication why the official email was read on 4th June 2024 and was read 24days later on 26th June 2024 noting that this was an official email.
5. He further averred that the Appellants herein are not deserving of the orders sought since the application was not made in good faith and that failure by the Appellants to file their defence on time was clearly not inadvertent but rather show lack of seriousness in the matter and the court process.
Ruling of the Trial Court.
6. The Trial court analysed the pleadings and submissions and held that the Appellants herein have not demonstrated any sufficient, adequate and viable reasons to warrant the exercise of the Courts discretion to set aside the default judgement.
The Appeal.
7. The Appellants aggrieved by the above ruling, filed two appeals, the grounds of appeal are contained in the memorandum of appeal dated 11th September 2024 in Civil Appeal No. 1047 of 2024 and memorandum of appeal dated 10th September 2024 in 1062 of 2024. The two appeals were later consolidated and will be considered together.
8. The Appellants among other grounds fault the Trial Court for dismissing their applications which amounts to denying them an opportunity of being heard.
The Submissions
9. Appellants filed their written submissions dated 18th December 2025 and 2nd September 2025. They both faulted the Trial court for failing to judiciously and exercise her discretion contrary to overriding objective of civil litigation.
10. Both Appellants submitted the Trial Court erred in declining to set aside an interlocutory judgement which will perpetuate miscarriage of justice.
11. The Respondent on the other hand submitted that the Trial court exercised its judicial discretion well given the facts of the case and the reasons advanced by the Appellant’s in their application were not supported.
Analysis and determination.
12. From the memorandum of appeals and the submission of the parties, the main issue for determination is whether the learned Magistrate’s Court exercised its discretion judiciously in dismissing the application before it.
13. From the study of the appeal and all the documents the facts are not contested, the Appellant’s informed the Trial Court in their application to set aside the default judgement that the main reason why their failed to defend their case is that the Director learnt of the existence of the case on 24th June 2024 upon returning of its managing director and upon reading of his emails.
14. From the supporting affidavit of Mr. Benjamin Ngonde Matheka dated 1st July 2024, he averred that he was the only employee of the company who could access the company’s email and that the three-week absence from the Country occasioned the lapse.
15. It is worth noting that there was no evidence availed before the trial court to support the above averments that the Director was indeed outside the country. Therefore, the Appellants failed to support their main ground of failing to defend the suit. The Appellants ought to have supported the averment with supporting documentations at the Trial Court.
16. This Court having evaluated the appeal, it is this Courts finding the there is no sufficient reason to enable overturn the Lower Courts ruling. The Trial Court in my view exercised its discretions properly. Speaking to the foregoing, the Court in Mbogo and Another -vs- Shah [1968] E.A. 93, was observed thus;
….. an appellate Court should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in law or acted on wrong principles or that he has allowed extraneous matters to influence his decision or that he has failed to take into consideration a matter which he should have taken into consideration and as a result thereof arrived at a wrong conclusion.
17. This Court is persuaded that the Learned magistrate in her ruling dated 12th August 2024 evaluated law and facts well and the decision to dismiss the application was proper.
18. This Court, therefore, finds there is no legal basis to interfere with the Lower Courts finding. The appeal is unmerited hence dismissed with costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 19th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No appearance for the 1st Appellant.
Ochieng Learned Counsel for the 2nd Appellant.
No Appearance for the Respondent.
Michael :Court Assistant.