( Appeal from the Order/Ruling of Hon. O.A Nyandusi (Resident Magistrate) delivered on 29 th November, 2024 in Makindu Small Claims Court SCC COMM Case Number E074 of 2024 )
JUDGMENT.
Introduction
1. This appeal arises from the judgment of Makindu Small Claims Court Case Number E074 of 2024 where the Court entered default judgement in favour of the Respondent. The Respondent filed his statement of claim dated the 29 th day of August, 2024 and pleaded that she entered into a handwritten agreement with Ms. Feza Kabuo Honorine for Kshs 400,000.00 being payment for transportation services the Respondent provided using his truck motor vehicle registration number KBU 182S for a journey from Mombasa to Mpondwe and that it was the Appellant herein who was to forward the full amount to the Respondent.
2. That on the 1 st of June, 2024 the Respondent pleaded that he received two co-operative bank deposits made by Jumaa Chikoza on behalf of the Respondent for Kshs. 145,000.00 and Kshs. 141,000.00. Further on the 13 th day of June,2024 the Respondent received a Mpesa payment of Kshs. 20,000.00 from Juma Chikoza which was also paid on behalf of the Appellant. The Respondent also pleaded that on the 14 th day of June, 2024 he again received two Mpesa payments of Kshs. 10,000 each from the Respondent directly bringing the total payment to Kshs. 316,000.00 against the total amount owed leaving an outstanding balance of Kshs. 84,000.00
3. The Respondent pleaded that despite demand and notice of intention to sue, the Respondent made no further payments toward the outstanding balance of Kshs. 84,000.00 hence the suit before the trial court.
4. The Appellant filed her response to the statement of claim dated the 1 st day of October, 2024 in which he impleaded that she did not owe the Respondent any money and that she was not privy to any contract between herself and the Respondent herein. She proceeded to file a third-party notice introducing Mr. Jumaa Chikoza as a party in the suit.
5. On the 4 th day of November, 2024 the Trial Court proceeded and entered a default judgment against the Appellant in the sum of Kshs. 84,000.00 plus costs of Kshs. 10,000.00 and interests at court rates from the date of filing of the claim and marked the filed as closed.
6. Being dissatisfied with the court’s decision, the appellant lodged this appeal citing 8 grounds of appeal produced verbatim hereunder:
1) That the Honourable Magistrate erred in law by failing to find merit in the Appellant’s Application dated 6 th November 2024 to set aside its ruling of 4 th November 2024.
2) That the Honourable Magistrate erred in law by considering the Applicant’s Application dated 6 th November 2024 to be an appeal of its ruling of 4 th November 2024.
3) That the Honourable Magistrate erred in law by striking out the Appellant’s Statement of Defense and Third Party Notice thereby unfairly dismissing the Appellant from the seat of justice.
4) That the learned magistrate failed to exercise his discretion judiciously and fairly to the detriment of the Appellant.
5) That the learned magistrate failed to exercise his discretion judiciously and fairly to the detriment of the Appellant.
6) That the learned magistrate erred in law when he failed to subject the Appellant to prove her claim in the suit.
7) That the learned Trial Magistrate erred in law in giving undue regard to procedural technicalities and at the expense of substantive justice to litigants contrary to article 159 of the Constitution of Kenya, 2010.
8) That the learned magistrate erred in law by issuing a premature judgement by failing to hear the Appellant thereby resulting to a miscarriage of justice contrary to section 50 of the Constitution of Kenya, 2010.
7. It was the Appellant’s prayer that the order/ruling and the ex parte judgement of the Honourable Court issued on the 4 th November, 2024 be set aside, that the Appellant’s response to the Statement of Claim and Third-Party Notice be reinstated and the matter at the trial court be allowed to proceed to full trial and the same to be determined on merit.
8. The appeal was canvassed by way of written submissions which I have considered. Both parties filed their respective submissions and which the court has taken into consideration in arriving at the determination herein.
Analysis & Determination
9. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in Section 38 of the Small Claims Court Act. Section 38 of the Small Claims Court Act provides as follows:
1. A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law.
2. An appeal from any decision or order referred to in sub section (1) shall be final.
10. The above provision means that this Court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this Court is essentially limited to points of law.
11. In addressing a point of law and point of fact, in the case of J N & 5 Others vs Board of Management, St. G School Nairobi & Another [2017] eKLR , Justice Mativo stated thus:
“In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.”
12. I have carefully read and considered the record, the grounds of appeal and the rival submissions by the parties. Section 43 of the Small Claims Court Act provide for setting aside of Court orders. It provides that:
“The Court may on the application of any Party to the proceedings set aside any of its orders and make such orders as it thinks just."
13. Rule 11 of the Small Claims Court Rules provides that the Small Claims Court has discretion to set aside a default judgement. Rule 11(4) of the Small Claims Rules sets out the grounds for setting aside an interlocutory judgment. It provides:
“The Court may set aside a default judgment or any consequential orders given under this rule on the written request of any party that is aggrieved by the decree or order if the Court is satisfied, on evidence given by the applicant, and on hearing the other parties to the proceeding, that the default was inadvertent, the applicant has a valid defence with a probability of success; or there are sufficient grounds to warrant setting aside the default judgment, decree or order.”
14. Upon reviewing the Memorandum of Appeal and the grounds therein and while this court will refrain itself in addressing factual issues and confine its analysis strictly on the matters of law, I will therefore proceed to determine whether the Learned Adjudicator was right in dismissing the Appellant’s application seeking to set aside default judgement pursuant to the provisions of Section 43, Rule 11(4) of the Act.
15. In answering this question, the first issue for determination is whether the judgement in question is regular or an irregular one.
16. It is now well settled from numerous precedents that a distinction exists between a default judgment that is regularly entered and one which is irregularly entered. In an irregular judgment, the 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 justiciae , 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.
17. In addition, the court will not venture into considerations of whether the intended defence raises triable issues 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 vs Attorney General [1986 – 1989] EA 456) .”
18. In James Kanyiita Nderitu & Another vs Marios Philotas Ghikas & Another [2016] eKLR the Court said,
“Where judgment is entered against a defendant who has not been served or properly served, such judgment is irregular and must be set aside ex debito justitiae.”
19. In Agigreen Consulting Corp Ltd vs National Irrigation Board [2020] eKLR , the Court stated thus;
“A default judgment founded on defective service is irregular and the court is entitled to set it aside as of right.”
20. In the present case, the matter came before court on the 16 th September, 2024 and the Respondent indicated that service had been effected upon the Appellant who at the time had a Counsel on record and requested for three days to allow him to file his rejoinder to the statement of claim which the court allowed. To this end I hold that service was regular.
21. Going further, a perusal of the court record shows that the three days granted by the trial court lapsed before the Appellant had filed their compliance documents. The matter was then slated for the 7/10/2024 and thereafter on the 14/10/2024 where the trial court made orders that the Appellant was to file and serve his documentation by close of business before the next date which was slated for the 29/10/2024 but the trial Court was not sitting and the matter was pushed to the 4/11/2024 where the Court made the order for the entry of the default judgement.
22. It is the Appellant’s contention that the compliance documents were filed the following morning a confirmation that the same were filed out of time and the reason thereof being that there was power outage hence the delay.
23. Justice Froneman in the South African Case of Burchell vs Burchell, Case No 364/2005 had the following to say
“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the courts and requires other organs of state to assist and protect the courts. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”
24. Guided by the above, the record demonstrates that the Appellant was afforded several opportunities to comply with the directions of the Small Claims Court but failed to do so within the prescribed timelines. The subsequent filing of the compliance documents even if attributed to a power outage did not cure the repeated failure to comply with the Court’s directions which eventually resulted in the entry of judgement in default.
25. In considering the totality of the matter as a whole, I am not satisfied that that the Appellant has demonstrated that the trial court, in exercising its discretion, acted arbitrary or capriciously, or ignored relevant facts, or disregarded the applicable principles.
26. In reaching the above verdict, I am also guided by the fact that the nature of the Small Claims Court is such that it is intended to ensure that “small claims” are dealt with efficiently without the burden of strict rules and at a minimum cost to the parties. In making Rules of that Court, the Chief Justice was guided by the Section 3 thereof which provides as follows:
“Section 3 - Guiding principles
(1) In exercise of its jurisdiction under this Act, the Court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution.
(3) Without prejudice to the generality of subsection
(1) the Court shall adopt such procedures as the Court deems appropriate to ensure—
(a) the timely disposal of all proceedings before the Court using the least expensive method;
(d) simplicity of procedure.”
27. Regarding the spirit of “ timely disposal ’ of cases filed at the Small Claims Court, Section 34 then provides that:
“34. Expeditious disposal of cases
“(1) All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.”
28. It must therefore be always recalled that proceedings before the Small Claims Court are expected to adhere to the principle of “ timely disposal ”, use of the “ least expensive method ” and “ simplicity of procedure ”. Sight should therefore never be lost of the spirit, aspirations, intentions and purpose of the Small Claims Court Act.
29. The Act was enacted to address a genuine concern and it is the duty of the Courts to ensure that focus is not lost on such concern and that the mischief that the Act sought to cure remains within sight. This is evidently also one of the reasons why an appeal from the Small Claims Court to the High Court is final. The Appellant having therefore failed to show good cause why it failed to defend the suit within the stipulate timelines, the spirit of “ timely disposal ” of cases filed before the Small Claims Court must prevail. Accordingly, I find no reason to elongate this litigation any further.
30. It is worth noting that the Appellant was granted several opportunities and extensions, despite the strict timelines provided under the statute, but did not comply. The Appellant has thus not come to court with clean hands to warrant the grant of the orders sought against the decision of the trial court.
Final Orders
31. The upshot of my findings above is that this appeal fails, and is accordingly dismissed. As costs follow the event, the Respondent is awarded costs of the appeal.
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 10 th September 2026.
HCCSCA NO. E001 OF 2024 PAULINE MWENDWA VS VICTOR MUTUNGA JUDGMENT Pg. 10
JUDGMENT.
Introduction
1. This appeal arises from the judgment of Makindu Small Claims Court Case Number E074 of 2024 where the Court entered default judgement in favour of the Respondent. The Respondent filed his statement of claim dated the 29 th day of August, 2024 and pleaded that she entered into a handwritten agreement with Ms. Feza Kabuo Honorine for Kshs 400,000.00 being payment for transportation services the Respondent provided using his truck motor vehicle registration number KBU 182S for a journey from Mombasa to Mpondwe and that it was the Appellant herein who was to forward the full amount to the Respondent.
2. That on the 1 st of June, 2024 the Respondent pleaded that he received two co-operative bank deposits made by Jumaa Chikoza on behalf of the Respondent for Kshs. 145,000.00 and Kshs. 141,000.00. Further on the 13 th day of June,2024 the Respondent received a Mpesa payment of Kshs. 20,000.00 from Juma Chikoza which was also paid on behalf of the Appellant. The Respondent also pleaded that on the 14 th day of June, 2024 he again received two Mpesa payments of Kshs. 10,000 each from the Respondent directly bringing the total payment to Kshs. 316,000.00 against the total amount owed leaving an outstanding balance of Kshs. 84,000.00
3. The Respondent pleaded that despite demand and notice of intention to sue, the Respondent made no further payments toward the outstanding balance of Kshs. 84,000.00 hence the suit before the trial court.
4. The Appellant filed her response to the statement of claim dated the 1 st day of October, 2024 in which he impleaded that she did not owe the Respondent any money and that she was not privy to any contract between herself and the Respondent herein. She proceeded to file a third-party notice introducing Mr. Jumaa Chikoza as a party in the suit.
5. On the 4 th day of November, 2024 the Trial Court proceeded and entered a default judgment against the Appellant in the sum of Kshs. 84,000.00 plus costs of Kshs. 10,000.00 and interests at court rates from the date of filing of the claim and marked the filed as closed.
6. Being dissatisfied with the court’s decision, the appellant lodged this appeal citing 8 grounds of appeal produced verbatim hereunder:
1) That the Honourable Magistrate erred in law by failing to find merit in the Appellant’s Application dated 6 th November 2024 to set aside its ruling of 4 th November 2024.
2) That the Honourable Magistrate erred in law by considering the Applicant’s Application dated 6 th November 2024 to be an appeal of its ruling of 4 th November 2024.
3) That the Honourable Magistrate erred in law by striking out the Appellant’s Statement of Defense and Third Party Notice thereby unfairly dismissing the Appellant from the seat of justice.
4) That the learned magistrate failed to exercise his discretion judiciously and fairly to the detriment of the Appellant.
5) That the learned magistrate failed to exercise his discretion judiciously and fairly to the detriment of the Appellant.
6) That the learned magistrate erred in law when he failed to subject the Appellant to prove her claim in the suit.
7) That the learned Trial Magistrate erred in law in giving undue regard to procedural technicalities and at the expense of substantive justice to litigants contrary to article 159 of the Constitution of Kenya, 2010.
8) That the learned magistrate erred in law by issuing a premature judgement by failing to hear the Appellant thereby resulting to a miscarriage of justice contrary to section 50 of the Constitution of Kenya, 2010.
7. It was the Appellant’s prayer that the order/ruling and the ex parte judgement of the Honourable Court issued on the 4 th November, 2024 be set aside, that the Appellant’s response to the Statement of Claim and Third-Party Notice be reinstated and the matter at the trial court be allowed to proceed to full trial and the same to be determined on merit.
8. The appeal was canvassed by way of written submissions which I have considered. Both parties filed their respective submissions and which the court has taken into consideration in arriving at the determination herein.
Analysis & Determination
9. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in Section 38 of the Small Claims Court Act. Section 38 of the Small Claims Court Act provides as follows:
1. A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law.
2. An appeal from any decision or order referred to in sub section (1) shall be final.
10. The above provision means that this Court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this Court is essentially limited to points of law.
11. In addressing a point of law and point of fact, in the case of J N & 5 Others vs Board of Management, St. G School Nairobi & Another [2017] eKLR , Justice Mativo stated thus:
“In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.”
12. I have carefully read and considered the record, the grounds of appeal and the rival submissions by the parties. Section 43 of the Small Claims Court Act provide for setting aside of Court orders. It provides that:
“The Court may on the application of any Party to the proceedings set aside any of its orders and make such orders as it thinks just."
13. Rule 11 of the Small Claims Court Rules provides that the Small Claims Court has discretion to set aside a default judgement. Rule 11(4) of the Small Claims Rules sets out the grounds for setting aside an interlocutory judgment. It provides:
“The Court may set aside a default judgment or any consequential orders given under this rule on the written request of any party that is aggrieved by the decree or order if the Court is satisfied, on evidence given by the applicant, and on hearing the other parties to the proceeding, that the default was inadvertent, the applicant has a valid defence with a probability of success; or there are sufficient grounds to warrant setting aside the default judgment, decree or order.”
14. Upon reviewing the Memorandum of Appeal and the grounds therein and while this court will refrain itself in addressing factual issues and confine its analysis strictly on the matters of law, I will therefore proceed to determine whether the Learned Adjudicator was right in dismissing the Appellant’s application seeking to set aside default judgement pursuant to the provisions of Section 43, Rule 11(4) of the Act.
15. In answering this question, the first issue for determination is whether the judgement in question is regular or an irregular one.
16. It is now well settled from numerous precedents that a distinction exists between a default judgment that is regularly entered and one which is irregularly entered. In an irregular judgment, the 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 justiciae , 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.
17. In addition, the court will not venture into considerations of whether the intended defence raises triable issues 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 vs Attorney General [1986 – 1989] EA 456) .”
18. In James Kanyiita Nderitu & Another vs Marios Philotas Ghikas & Another [2016] eKLR the Court said,
“Where judgment is entered against a defendant who has not been served or properly served, such judgment is irregular and must be set aside ex debito justitiae.”
19. In Agigreen Consulting Corp Ltd vs National Irrigation Board [2020] eKLR , the Court stated thus;
“A default judgment founded on defective service is irregular and the court is entitled to set it aside as of right.”
20. In the present case, the matter came before court on the 16 th September, 2024 and the Respondent indicated that service had been effected upon the Appellant who at the time had a Counsel on record and requested for three days to allow him to file his rejoinder to the statement of claim which the court allowed. To this end I hold that service was regular.
21. Going further, a perusal of the court record shows that the three days granted by the trial court lapsed before the Appellant had filed their compliance documents. The matter was then slated for the 7/10/2024 and thereafter on the 14/10/2024 where the trial court made orders that the Appellant was to file and serve his documentation by close of business before the next date which was slated for the 29/10/2024 but the trial Court was not sitting and the matter was pushed to the 4/11/2024 where the Court made the order for the entry of the default judgement.
22. It is the Appellant’s contention that the compliance documents were filed the following morning a confirmation that the same were filed out of time and the reason thereof being that there was power outage hence the delay.
23. Justice Froneman in the South African Case of Burchell vs Burchell, Case No 364/2005 had the following to say
“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the courts and requires other organs of state to assist and protect the courts. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”
24. Guided by the above, the record demonstrates that the Appellant was afforded several opportunities to comply with the directions of the Small Claims Court but failed to do so within the prescribed timelines. The subsequent filing of the compliance documents even if attributed to a power outage did not cure the repeated failure to comply with the Court’s directions which eventually resulted in the entry of judgement in default.
25. In considering the totality of the matter as a whole, I am not satisfied that that the Appellant has demonstrated that the trial court, in exercising its discretion, acted arbitrary or capriciously, or ignored relevant facts, or disregarded the applicable principles.
26. In reaching the above verdict, I am also guided by the fact that the nature of the Small Claims Court is such that it is intended to ensure that “small claims” are dealt with efficiently without the burden of strict rules and at a minimum cost to the parties. In making Rules of that Court, the Chief Justice was guided by the Section 3 thereof which provides as follows:
“Section 3 - Guiding principles
(1) In exercise of its jurisdiction under this Act, the Court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution.
(3) Without prejudice to the generality of subsection
(1) the Court shall adopt such procedures as the Court deems appropriate to ensure—
(a) the timely disposal of all proceedings before the Court using the least expensive method;
(d) simplicity of procedure.”
27. Regarding the spirit of “ timely disposal ’ of cases filed at the Small Claims Court, Section 34 then provides that:
“34. Expeditious disposal of cases
“(1) All proceedings before the Court on any particular day so far as is practicable shall be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim.”
28. It must therefore be always recalled that proceedings before the Small Claims Court are expected to adhere to the principle of “ timely disposal ”, use of the “ least expensive method ” and “ simplicity of procedure ”. Sight should therefore never be lost of the spirit, aspirations, intentions and purpose of the Small Claims Court Act.
29. The Act was enacted to address a genuine concern and it is the duty of the Courts to ensure that focus is not lost on such concern and that the mischief that the Act sought to cure remains within sight. This is evidently also one of the reasons why an appeal from the Small Claims Court to the High Court is final. The Appellant having therefore failed to show good cause why it failed to defend the suit within the stipulate timelines, the spirit of “ timely disposal ” of cases filed before the Small Claims Court must prevail. Accordingly, I find no reason to elongate this litigation any further.
30. It is worth noting that the Appellant was granted several opportunities and extensions, despite the strict timelines provided under the statute, but did not comply. The Appellant has thus not come to court with clean hands to warrant the grant of the orders sought against the decision of the trial court.
Final Orders
31. The upshot of my findings above is that this appeal fails, and is accordingly dismissed. As costs follow the event, the Respondent is awarded costs of the appeal.
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 10 th September 2026.
HCCSCA NO. E001 OF 2024 PAULINE MWENDWA VS VICTOR MUTUNGA JUDGMENT Pg. 10