(Being an Appeal against the Ruling of Hon. Manuela W. Kinyanjui, Senior Principal
Magistrate in Nairobi Small Claims Court SCCCOMM. E96881 of 2025
delivered on 28th October 2025)
Background
1. The Appellant, Safewerx Supplies Limited, filed a claim at the Nairobi Small Claims Court on 26th June 2025 against the Respondents, John Kinoti (1st Respondent) and Multi Q Kenya (2nd Respondent), seeking recovery of Kshs. 252,750 being the purchase price of 375 raincoats that were rejected by the Appellant’s client, Sony Sugar Limited.
2. The Respondents entered appearance on 16th July 2025 by filing a Notice of Appointment of Advocates dated 11th July 2025, and simultaneously filed a Preliminary Objection dated 11th July 2025, challenging the joinder of the 1st Respondent in his personal capacity as a director of the 2nd Respondent. No Response or Defence to the Claim was ever filed.
3. On 21st August 2025, the trial court entered default judgment against the Respondents for failure to file a Response/Defence. On the same day, the Respondents filed an application under certificate of urgency seeking to set aside the default judgment. On 25th August 2025, the trial court granted a temporary stay of execution pending inter partes hearing.
4. After receiving and noting the parties’ written submissions, the trial court delivered its Ruling on 28th October 2025, setting aside the default judgment on the basis that the Preliminary Objection was on record at the time default judgment was entered. The Appellant now appeals against that Ruling.
Issues for Determination
5. The four grounds of appeal have been collapsed into the following two issues for determination:
a. Whether the trial court erred in setting aside default judgment on the basis of a Preliminary Objection unsupported by a filed Defence or Response to the Claim;
b. Whether the trial court exceeded its jurisdiction by entertaining the application to set aside default judgment after the lapse of the 60-day period prescribed under Section 34(1) of the Small Claims Court Act.
Analysis
Issue (a): The Competence of the Preliminary Objection and the Setting Aside of Default Judgment
6. The Appellant’s central submission is that the Preliminary Objection filed by the Respondents was incompetent for want of a Defence, and that the trial court therefore had no basis upon which to set aside the default judgment.
7. The Appellant relies heavily on Sapani v Bank of Africa Kenya Limited (Civil Appeal E1013 of 2022) [2025] KEHC 1664 (KLR) and TEJ Darshan Investment & another v Luma Stores & Supplies Enterprises Limited & another (Environment and Land Appeal 39 of 2018) [2022] KEELC 13330 (KLR).
8. The Respondents counter that the trial court was not called upon to determine the competence or merits of the Preliminary Objection at that stage. The Ruling of 28th October 2025 merely recognised that the Preliminary Objection was on the court record on 21st August 2025 when default judgment was entered, and exercised a statutory discretion under Sections 41 and 43 of the Small Claims Court Act to set aside the default judgment so that all pending matters could be dealt with inter partes.
9. The court notes at the outset that a default judgment is, by its very nature, entered against a party who has not filed a defence. It would be a logical impossibility, as astutely observed by the Respondents, to require a party against whom a default judgment has been entered to have simultaneously filed a defence. Section 27 of the Small Claims Court Act expressly contemplates the entry of default judgment where a respondent fails to file a response; such a respondent would, by definition, have no defence on record.
10. The authorities cited by the Appellant are, on careful examination, distinguishable. In Sapani v Bank of Africa Kenya Limited (supra), the High Court was considering whether a Preliminary Objection on its own merits could operate to stay the entry of summary judgment where no defence had been filed. Similarly, in TEJ Darshan Investment (supra), the question was whether a Preliminary Objection unaccompanied by a Defence could form a pleading upon which a court could determine jurisdiction.
11. In both cases, the courts were dealing with the substantive competence of a Preliminary Objection as a pleading. Neither case addressed the separate and distinct question of whether the existence of a Preliminary Objection on the court record is a factor that a trial court may legitimately consider in exercising its discretion to set aside a default judgment.
12. The question of whether to set aside a default judgment is governed by established principles of equity and procedure. The principles applicable in determining whether to set aside an exparte judgment were laid out by the Court of Appeal in the case of Pithon Waweru Maina v Thuka Mugiria [1983]eKLR as follows:
“ a) Firstly, there are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just...The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. Patel v EA Cargo Handling Services Ltd [1974] EA 75 at 76C and E b). Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. Shah v Mbogo [1967]EA 116 at 123B, Shabir Din v Ram Parkash Anand (1955) 22 EACA 48.c). Thirdly the Court of Appeal 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 some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice. Mbogo v Shah [1968]EA 93
13. Therefore, absent fraud or intention to overreach, no error or default is so grave that a party should be permanently shut out from having their case determined on its merits. The courts should emphasize that courts exist for the purpose of determining the rights of parties, not for the purpose of imposing discipline.
14. I n Shah v Mbogo & another (supra), the East Africa Court of Appeal, in a pronouncement that has endured as a lodestar in this jurisdiction, held that the discretion to set aside a default judgment should be exercised to avoid injustice and not to visit upon a party the sins of their advocate, and that the primary consideration is whether the defendant has a defence to the claim on the merits.
15. The Respondents in the present case assert a Preliminary Objection going to misjoinder of the 1st Respondent, a matter touching on the doctrine of separate legal personality as established in Salomon v Salomon [1897] AC 22 and affirmed locally in Victor Mabachi & another v Nurtun Bates Ltd [2013] eKLR . Whether or not that Preliminary Objection ultimately succeeds is a matter for the trial court.
16. The trial court, in setting aside the default judgment, exercised the discretion expressly conferred upon it by Section 43 of the Small Claims Court Act. The role of this court on appeal is not to substitute its own discretion for that of the trial court but to ask whether the trial court acted on wrong principles or took into account irrelevant factors. See Mbogo & another v Shah [1968] EA 93, where the Court of Appeal cautioned that an appellate court should not interfere with the exercise of discretion by a trial court unless it is satisfied that the discretion was exercised on a wrong principle.
17. No such wrong principle has been demonstrated here. The trial court appropriately considered that the Respondents had entered appearance, had filed a PO, the substantive merits of which it was not called upon to determine, and that their Advocate’s non-attendance was caused by her simultaneous appearance in another court circumstances that this court finds sufficient to support the exercise of discretion in favour of setting aside.
18. Grounds 1, 2 and 3 of the Appeal therefore fail.
Issue (b): Jurisdiction After the Lapse of 60 Days
19. The Appellant submits that the trial court lost jurisdiction to entertain any proceedings after the expiry of the 60-day period under Section 34(1) of the Small Claims Court Act, which it argues lapsed on 27th August 2025, the claim having been filed on 27th June 2025. Reliance is placed on Muiruri v Mkalama [2025] KEHC 10689 (KLR), where this court held that the 60-day timeline is mandatory and that any adjudication conducted beyond it is a nullity.
20. This court is not persuaded that Muiruri v Mkalama (supra) bears the meaning the Appellant ascribes to it in the context of this case. The finding in that case concerned the final determination of a claim delivered well outside the 60-day window. It was not concerned with, and does not address, an interlocutory application to set aside a default judgment arising from proceedings that were themselves concluded within the 60-day period.
21. In the present case, the default judgment was entered on 21st August 2025, squarely within the 60 days from the date of filing on 27th June 2025. The application to set aside that default judgment was filed on the very same day, 21st August 2025, also within the 60-day period. A temporary stay of execution was granted on 25th August 2025, still within the 60 days. The Ruling setting aside the default judgment was delivered on 28th October 2025.
22. Sections 41 and 43 of the Small Claims Court Act provide a respondent with the statutory right to apply for, and a court the discretion to grant, the setting aside of a default judgment. Those provisions contain no temporal limitation that would restrict such an application to the 60-day window from initial filing. To import such a limitation, as the Appellant urges, would be to read into the statute words that the legislature did not enact. The Respondents pose the question: what recourse would a respondent have if default judgment were entered on the 60th day and they only became aware of it on the 61st day? The answer must be that such a Respondent retains the right to apply under Sections 41 and 43, otherwise those provisions would be rendered nugatory in a large class of cases.
23. Ground 4 of the Appeal accordingly also fails.
Orders
24. In the premises, and for the foregoing reasons, this Court makes the following orders:
a. The appeal is hereby dismissed.
b. The matter is remitted to the trial court for hearing and determination of the Respondents’ Preliminary Objection dated 11th July 2025 and, thereafter, the substantive claim.
c. The costs of this appeal shall be in the cause, to be determined by the trial court upon the final resolution of the matter on the merits.
Dated, signed and delivered at Nairobi this 4th day of June 2026.
BENARD WAFULA MURUNGA
JUDGE
Delivered on virtual platform in the presence of
N/A for the Appellant
Malanga for the Respondent
Kevin Babu - Court Assistant
Magistrate in Nairobi Small Claims Court SCCCOMM. E96881 of 2025
delivered on 28th October 2025)
Background
1. The Appellant, Safewerx Supplies Limited, filed a claim at the Nairobi Small Claims Court on 26th June 2025 against the Respondents, John Kinoti (1st Respondent) and Multi Q Kenya (2nd Respondent), seeking recovery of Kshs. 252,750 being the purchase price of 375 raincoats that were rejected by the Appellant’s client, Sony Sugar Limited.
2. The Respondents entered appearance on 16th July 2025 by filing a Notice of Appointment of Advocates dated 11th July 2025, and simultaneously filed a Preliminary Objection dated 11th July 2025, challenging the joinder of the 1st Respondent in his personal capacity as a director of the 2nd Respondent. No Response or Defence to the Claim was ever filed.
3. On 21st August 2025, the trial court entered default judgment against the Respondents for failure to file a Response/Defence. On the same day, the Respondents filed an application under certificate of urgency seeking to set aside the default judgment. On 25th August 2025, the trial court granted a temporary stay of execution pending inter partes hearing.
4. After receiving and noting the parties’ written submissions, the trial court delivered its Ruling on 28th October 2025, setting aside the default judgment on the basis that the Preliminary Objection was on record at the time default judgment was entered. The Appellant now appeals against that Ruling.
Issues for Determination
5. The four grounds of appeal have been collapsed into the following two issues for determination:
a. Whether the trial court erred in setting aside default judgment on the basis of a Preliminary Objection unsupported by a filed Defence or Response to the Claim;
b. Whether the trial court exceeded its jurisdiction by entertaining the application to set aside default judgment after the lapse of the 60-day period prescribed under Section 34(1) of the Small Claims Court Act.
Analysis
Issue (a): The Competence of the Preliminary Objection and the Setting Aside of Default Judgment
6. The Appellant’s central submission is that the Preliminary Objection filed by the Respondents was incompetent for want of a Defence, and that the trial court therefore had no basis upon which to set aside the default judgment.
7. The Appellant relies heavily on Sapani v Bank of Africa Kenya Limited (Civil Appeal E1013 of 2022) [2025] KEHC 1664 (KLR) and TEJ Darshan Investment & another v Luma Stores & Supplies Enterprises Limited & another (Environment and Land Appeal 39 of 2018) [2022] KEELC 13330 (KLR).
8. The Respondents counter that the trial court was not called upon to determine the competence or merits of the Preliminary Objection at that stage. The Ruling of 28th October 2025 merely recognised that the Preliminary Objection was on the court record on 21st August 2025 when default judgment was entered, and exercised a statutory discretion under Sections 41 and 43 of the Small Claims Court Act to set aside the default judgment so that all pending matters could be dealt with inter partes.
9. The court notes at the outset that a default judgment is, by its very nature, entered against a party who has not filed a defence. It would be a logical impossibility, as astutely observed by the Respondents, to require a party against whom a default judgment has been entered to have simultaneously filed a defence. Section 27 of the Small Claims Court Act expressly contemplates the entry of default judgment where a respondent fails to file a response; such a respondent would, by definition, have no defence on record.
10. The authorities cited by the Appellant are, on careful examination, distinguishable. In Sapani v Bank of Africa Kenya Limited (supra), the High Court was considering whether a Preliminary Objection on its own merits could operate to stay the entry of summary judgment where no defence had been filed. Similarly, in TEJ Darshan Investment (supra), the question was whether a Preliminary Objection unaccompanied by a Defence could form a pleading upon which a court could determine jurisdiction.
11. In both cases, the courts were dealing with the substantive competence of a Preliminary Objection as a pleading. Neither case addressed the separate and distinct question of whether the existence of a Preliminary Objection on the court record is a factor that a trial court may legitimately consider in exercising its discretion to set aside a default judgment.
12. The question of whether to set aside a default judgment is governed by established principles of equity and procedure. The principles applicable in determining whether to set aside an exparte judgment were laid out by the Court of Appeal in the case of Pithon Waweru Maina v Thuka Mugiria [1983]eKLR as follows:
“ a) Firstly, there are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just...The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. Patel v EA Cargo Handling Services Ltd [1974] EA 75 at 76C and E b). Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. Shah v Mbogo [1967]EA 116 at 123B, Shabir Din v Ram Parkash Anand (1955) 22 EACA 48.c). Thirdly the Court of Appeal 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 some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice. Mbogo v Shah [1968]EA 93
13. Therefore, absent fraud or intention to overreach, no error or default is so grave that a party should be permanently shut out from having their case determined on its merits. The courts should emphasize that courts exist for the purpose of determining the rights of parties, not for the purpose of imposing discipline.
14. I n Shah v Mbogo & another (supra), the East Africa Court of Appeal, in a pronouncement that has endured as a lodestar in this jurisdiction, held that the discretion to set aside a default judgment should be exercised to avoid injustice and not to visit upon a party the sins of their advocate, and that the primary consideration is whether the defendant has a defence to the claim on the merits.
15. The Respondents in the present case assert a Preliminary Objection going to misjoinder of the 1st Respondent, a matter touching on the doctrine of separate legal personality as established in Salomon v Salomon [1897] AC 22 and affirmed locally in Victor Mabachi & another v Nurtun Bates Ltd [2013] eKLR . Whether or not that Preliminary Objection ultimately succeeds is a matter for the trial court.
16. The trial court, in setting aside the default judgment, exercised the discretion expressly conferred upon it by Section 43 of the Small Claims Court Act. The role of this court on appeal is not to substitute its own discretion for that of the trial court but to ask whether the trial court acted on wrong principles or took into account irrelevant factors. See Mbogo & another v Shah [1968] EA 93, where the Court of Appeal cautioned that an appellate court should not interfere with the exercise of discretion by a trial court unless it is satisfied that the discretion was exercised on a wrong principle.
17. No such wrong principle has been demonstrated here. The trial court appropriately considered that the Respondents had entered appearance, had filed a PO, the substantive merits of which it was not called upon to determine, and that their Advocate’s non-attendance was caused by her simultaneous appearance in another court circumstances that this court finds sufficient to support the exercise of discretion in favour of setting aside.
18. Grounds 1, 2 and 3 of the Appeal therefore fail.
Issue (b): Jurisdiction After the Lapse of 60 Days
19. The Appellant submits that the trial court lost jurisdiction to entertain any proceedings after the expiry of the 60-day period under Section 34(1) of the Small Claims Court Act, which it argues lapsed on 27th August 2025, the claim having been filed on 27th June 2025. Reliance is placed on Muiruri v Mkalama [2025] KEHC 10689 (KLR), where this court held that the 60-day timeline is mandatory and that any adjudication conducted beyond it is a nullity.
20. This court is not persuaded that Muiruri v Mkalama (supra) bears the meaning the Appellant ascribes to it in the context of this case. The finding in that case concerned the final determination of a claim delivered well outside the 60-day window. It was not concerned with, and does not address, an interlocutory application to set aside a default judgment arising from proceedings that were themselves concluded within the 60-day period.
21. In the present case, the default judgment was entered on 21st August 2025, squarely within the 60 days from the date of filing on 27th June 2025. The application to set aside that default judgment was filed on the very same day, 21st August 2025, also within the 60-day period. A temporary stay of execution was granted on 25th August 2025, still within the 60 days. The Ruling setting aside the default judgment was delivered on 28th October 2025.
22. Sections 41 and 43 of the Small Claims Court Act provide a respondent with the statutory right to apply for, and a court the discretion to grant, the setting aside of a default judgment. Those provisions contain no temporal limitation that would restrict such an application to the 60-day window from initial filing. To import such a limitation, as the Appellant urges, would be to read into the statute words that the legislature did not enact. The Respondents pose the question: what recourse would a respondent have if default judgment were entered on the 60th day and they only became aware of it on the 61st day? The answer must be that such a Respondent retains the right to apply under Sections 41 and 43, otherwise those provisions would be rendered nugatory in a large class of cases.
23. Ground 4 of the Appeal accordingly also fails.
Orders
24. In the premises, and for the foregoing reasons, this Court makes the following orders:
a. The appeal is hereby dismissed.
b. The matter is remitted to the trial court for hearing and determination of the Respondents’ Preliminary Objection dated 11th July 2025 and, thereafter, the substantive claim.
c. The costs of this appeal shall be in the cause, to be determined by the trial court upon the final resolution of the matter on the merits.
Dated, signed and delivered at Nairobi this 4th day of June 2026.
BENARD WAFULA MURUNGA
JUDGE
Delivered on virtual platform in the presence of
N/A for the Appellant
Malanga for the Respondent
Kevin Babu - Court Assistant