REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCCOMM NO. E003 OF 2023
SHEILA NEKESA SIFUNA (minor suing Thro’
her father & next friend STANLEY SIFUNA BUSURU………..…..PLAINTIFF
VERSUS
KENYA POWER & LIGHTING COMPANY LTD………….……DEFENDANT
RULING
1. Before this court is an Application dated 16 th October, 2025 brought under the provisions of Order 10 Rule 10 and 11 of the Civil Procedure Rules , Section 1A, 1B and 3A of the Civil Procedure Act and Article 159(2) of the Constitution of Kenya . It seeks the following Orders:
a) Spent
b) Spent
c) Judgement herein be vacated.
d) Leave be granted to the defendant/applicant to defend the instant suit.
e) Costs of this Application be provided for.
Background
2. The plaintiff respondent’s suit was instituted vide a plaint dated 20 th August, 2023 which was filed in court on 23 rd August, 2023.
3. It is acknowledged that both the plaint and summons to enter were served upon the defendant applicant which in turn forwarded the same to the applicant’s underwriters being Liaison Group (I.B.) Limited, by inadvertence the said underwriters failed to appoint advocates to represent the applicant leading to entry of judgment in default of defence against the applicant.
4. The record shows that the default judgment was entered on 27 th September, 2024 by the Deputy Registrar of this court and which is the subject of the present application.
5. It is apparent that upon realization by the applicant that judgment had been entered against it, its advocates on record engaged the counsel for the respondent with a view to having the judgment set aside with costs to the respondent but the negotiations did not bear any fruits.
6. The applicant’s application is supported by the affidavits of Michael Chege, Michael Ochieng and Herbert Nyamurongi all sworn on 16 th October, 2025.
7. The grounds in support of the Application are broadly that the Defendant/Applicant was served with pleadings in the matter herein. That the pleadings were forwarded to the applicant’s underwriters for appointment of advocates to defend the claim. However, due to an inadvertent oversight on the part of its underwriters the Defendant/Applicant’s failure to defend the suit only came to light when they were served with a notice to confirm filing of submissions.
8. Michael Chege who has made averments on behalf of the underwriters contracted by the Defendant/Applicant, that is Liaison Group, depones that an email was sent to him on 5 th September, 2023 by an employee of the Defendant/Applicant which forwarded summons and the plaint. He depones that he inadvertently failed to appoint a firm of advocates to defend the instant suit. He only realized this oversight when the Defendant/Applicant sent him an email on 5 th March, 2024 upon which he appointed the advocates on record for the Defendant/Applicant.
9. It is further deponed that the Defendant/Applicant’s advocate reached out to Mr. Omundi Bw’onchiri who is on record for the Plaintiff/Respondent and indicated a willingness to have the ex parte judgement set aside but only upon payment of throw away costs of Ksh. 100, 000/= .
10. That a consent to set aside the ex parte judgement was forwarded to the Respondent’s advocate but he instead, contrary to the expectations of the applicant, on 6 th August, 2025 sent a bill of costs to the applicant’s counsel.
11. The Applicant avers that the Applicant’s underwriters appointed the advocates on record who reached out to the Plaintiff/Respondent’s advocates who committed to having the judgment set aside upon delivery.
12. The Applicant prays for an opportunity to be heard and that it has a tenable defence and that the inadvertent omission on the part of the applicant’s underwriters should not be visited on the applicant.
13. The Applicant’s underwriters offered to pay throw away costs in the sum of Ksh. 100, 000/= to ameliorate any prejudice which the Respondent would suffer if the ex parte judgement is set aside.
14. The affidavit sworn by Michael Ochieng who depones that he is the Manager in charge of insurance services for the Defendant/Applicant reiterates the above grounds adding that the email of 5 th March, 2024 t o Michael Chege inquiring into the status of the case brought to the attention of the underwriter the omission on their part.
15. It is deponed that as such the underwriters were willing to pay throw away costs in the sum of Ksh. 100, 000/= and that the defence placed on record was tenable. It is also averred that it will be punitive to drive the applicant away from the seat of justice unheard
16. The applicant also expresses concern that a delay in hearing of the application would render it moot and nugatory as the applicant was apprehensive that the Respondent whose financial means was unknown would not be able to restitute any monies which may be paid out to her in the enforcement of the judgement of this honourable court.
17. It is also deponed that the suit ought to be defended as high payouts translate to increased insurance premium payments which constrains service delivery to the public. Further that the respondent is a minor who does not possess any financial means to restitute the said monies if the applicant is allowed to successfully defend the suit. That the judgement award is over Kshs.50,000,000.00 which is by all accounts ,a colossal amount of money. The applicant shall suffer substantial loss should the said sum be paid out.
Replying Affidavit
18. The replying affidavit sworn by Stanley Sifuna Busuru on 28 th February, 2026 contends that this application is frivolous, vexatious, scandalous and an abuse of the due process of court.
19. The Respondent depones that on the 6 th April, 2023 , his daughter who is the Plaintiff (Minor) herein while lawfully walking along Lunakwe-Chiliba road near Burangasi School within Bumula Sub-County -Bungoma County, was electrocuted by the Defendant’s live Electric wires that were attached to two Electric Poles that had fallen on the road and she sustained severe bodily injuries.
20. It is deponed that after her discharge from Hospital she instituted this suit on the 23 rd August 2023 and on the 30 th August 2023 the Defendant was served with Summons to enter Appearance and the Plaint, the respondent has annexed a return of service in proof of the averment.
21. It is also deponed that the Defendant was served on multiple other occasions for routine mentions but failed to appear despite service, the respondent has annexed a number of affidavits in proof of service. After interlocutory judgement was entered the suit was set down for hearing on 26 th February, 2025 by way of formal proof.
22. The Respondent avers that the Defendant has not demonstrated in their Affidavits the efforts they made to reach out to their underwriters from the time they forwarded Summons as alleged while taking into consideration the several reminders the Respondent’s advocate made to them. The Respondent maintains that the Defendants have not been keen in this case, a fact that has prejudiced the minor Plaintiff who sustained very severe bodily injuries that were described by her doctor as being grievous.
23. Further, that the negotiations between advocates herein were done on a without prejudice basis.
Supplementary Affidavit
24. Pursuant to leave granted by this court on 16 th February, 2026 the Defendant/Applicant put in a supplementary affidavit dated 19 th March, 2026 sworn by Michael Ocheing. It is deponed that the Defendant/Applicant did not receive the notices stated to have been sent by the Plaintiff/Respondent by way of email for the reason that there are instances where the applicant’s software filters out emails perceived to be spam and in such instances the applicant would have no notice that an email had been sent to it. However, that whenever physical service was effected the Applicant acted promptly.
25. A ruling reinstating this Application after it had been dismissed on 28 th October, 2025 was delivered on 16 th February, 2026 whereupon parties took directions on this present application. The Application was directed to be canvassed by way of written submissions. The Defendant/Applicant filed submissions dated 20 th March, 2026 while the Plaintiff/Respondent filed submissions dated 28 th February, 2026.
Defendant/Applicant’s Submissions
26. Counsel for the Applicant submits that the court has wide discretion in setting aside a default judgement. Counsel argues that the court should not fetter that discretion by imposing conditions on itself. Reliance was placed on the cases of Patel v East Africa Cargo Handling Services Ltd [1974] EA 75 cited in the case of Kariuki v Standard Group Limited & 2 others (Civil Suit E190 of 2020) [2022] KEHC 10505 (KLR) (Civ) (17 June 2022).
27. Counsel submits that if conditions are imposed in setting aside a default judgement, they ought to be fair. Reliance was placed on Yooshin Engineering Corporation v Aia Architects Limited (Civil Appeal E074 of 2022) [2023] KECA 872 (KLR) (7 July 2023) (Judgment) and Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR) citing Esther Wamaitha Njihia & two others vs. Safaricom Ltd.
28. It is also submitted that the draft defence placed on record raises triable issues as to whether the accident actually occurred, if the defendant applicant was blameworthy, if the injuries pleaded had been sustained and whether the plaintiff was entitled to the reliefs sought.
29. It is also submitted that the Respondent had expressed willingness to accept the sum of Kshs.100,000.00 as thrown away costs as a condition for setting aside judgement which counsel maintains the Applicant is still amenable to paying.
30. Counsel submits that the failure by the applicant to appear and defend the suit was purely out of inadvertence on the part of its insurers and that it had nothing to do with the applicant which did not in any way intend to delay justice and that the failure to defend the suit was wholly unintentional.
31. It is further submitted by counsel that the reason for the default to enter appearance and file a defence was plausible, he places reliance in the case of Wilson Cheboi Yego v Samuel Kipsang Cheboi [2019] KECA 638 (KLR). Further that the failure to put in a defence was not one of negligence but a human blunder, the applicant relies in the case of Philip Keiptoo Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) .
32. Counsel is urging this court to award throw away costs of Ksh. 100, 000/= and to allow the applicant to defend the suit on its merits.
Plaintiff/Respondent’s Submissions
33. Counsel for the Plaintiff/Respondent submits that the orders sought from the court are discretionary and equitable remedies but that as demonstrated the Applicant had been served severally and it was undeserving of such orders as equity aids the vigilant and not the indolent. That the Applicant had not approached the court with clean hands as that it had sought to delay or obstruct justice. Reliance was placed on the cases of Mohamed Shally (Shah Sese) V Fulson Co. Limited & Another (2000) eKLR and Richard Nchapai Leiyangu vs IEBC & 2 Others.
34. It is further submitted that the Plaintiff/Respondent who is a minor suffered grievous injuries from the accident for which the Applicant is blamed. That in her pursuit of justice she instituted the instant suit against the Applicant and served them with pleadings and notices on several occasions which were ignored. It is also submitted that the Applicant cannot hide behind the underwriters or advocates without any explanation as to why it never made follow ups. Reliance is placed on the cases of Nature Pharmacy Limited & Another =VS= Gichuhi (Civil Appeal 245 of 2016)(2022) KECA 827 ( KLR) (27 May 2022) Judgment) and Omwoyo =VS= African Highlands and Produce Co. Limited (2002) I KLR.
Issues for Determination
35. In light of the foregoing the following issues arise for determination:
i. Whether the Ex-Parte judgement is regular.
ii. Whether the Ex-parte judgement ought to be set aside.
iii. If the answer to (ii) above is in the affirmative, what conditions should be imposed on the part of the applicant.
Analysis & Determination
i) Whether the Ex-Parte judgement is regular
36. At the onset it is important to state that service is not contested. The Defendant/Applicant does not dispute that service of summons to enter appearance was effected upon it. As such the default judgment herein is regular. However, this court still retains the discretion to set aside the regular judgement.
37. The Civil Procedure Rules, Order 10 Rule 10 provides that:
Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.
38. The court of appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) held thus on the power of the court to set aside ex-parte judgements:
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 others. 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)
39. It is trite that a court has wide discretion to set aside a default judgement, however, this power is to be exercised judiciously with due regard to the principles established in the cited long line of authorities, with a view to doing justice to the parties.
ii) Whether the Ex-parte judgement ought to be set aside.
40. The Defendant/Applicant pleaded that its underwriters, Liaison Group, received the pleadings on 5 th September, 2023 , but inadvertently failed to instruct advocates to defend the claim and that the omission was discovered on 5 th March, 2024 , some six months later.
41. The default to enter appearance on the part of the Defendant/Applicant appears in essence to be an institutional lapse in the handling of the file rather than a deliberate or persistent attempt to delay and or obstruct justice.
42. An oversight of this kind, occurring within the chain between an insured corporate defendant and its underwriters, is the sort of inadvertence that is curable by an award of costs rather than being fatal to an application of this nature. The court of appeal in the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) while addressing itself to an application of this nature , Apaloo JA (as he then was) stated thus;
I think a distinguished equity judge has said:
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”
I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline. In this case, the appellants offered to pay the costs. The respondent will not agree.
43. The Defendant/Applicant's draft defence as annexed to the instant application denies the occurrence of the accident as pleaded, and attributes it in the alternative, if it indeed it occurred, to the Plaintiff herself rather than to any negligence on the part of the Applicant.
44. The draft defence is not confined to quantum of damages or to a technical point; it puts in issue the very occurrence of the incident and, in the alternative, liability for it, which prima facie are triable issues going to the root of the claim.
45. A draft defence disclosing an arguable case of this kind warrants the exercise of the court’s discretion. This court is satisfied that a defendant facing a claim of the magnitude pleaded here with judgment entered after formal proof in a sum exceeding Kshs. 50,000,000/= and raising an arguable defence ought, ordinarily, to be heard on the merits.
iii) What conditions should be imposed if the judgement is set aside .
46. The Court of Appeal in Yooshin Engineering Corporation v Aia Architects Limited [2023] KECA 872 (KLR) held that;
“However, even where the judgement is regular, the court still retains the wide discretion to set the same aside though if the Court decides to set aside the judgement, depending on the circumstances, it may do so on conditions that are just. That discretion, being wide, the main concern is for the court to do justice to the parties, and in so doing the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. It has however to ask itself under what conditions, if any, it ought to set aside the judgement and such conditions, if appropriate, must be just to both the Plaintiff and the Defendant.”
47. Thrown away costs are compensatory and are pegged to the cost, inconvenience and prejudice actually occasioned to the respondent by the default to enter appearance and the prosecution of the application to set aside a judgment duly entered.
48. While the size of the award is highly relevant to whether the Applicant should be heard at all, it is not by itself, a basis for inflating throw away costs into something closer to a security for stay of judgement.
49. Accordingly, this court finds that a sum of Ksh. 120, 000/= as throw away costs payable to the Plaintiff/Respondent as condition to set aside the default judgement is appropriate and allows the case to be heard on its merits.
50. The upshot is that the Application dated 16 th October, 2025 is allowed as prayed and the following Orders issue:
1. The default judgment entered herein and the consequent decree be and are hereby set aside.
2. The Defendant/Applicant is granted leave to file and serve its Defence within 14 days from the date of this Ruling.
3. As a condition for the grant of this order, the Defendant/Applicant shall pay to the Plaintiff/Respondent throw away costs of Kshs. 120,000/= within 14 days of this Ruling, failing which this order shall stand vacated and the judgment and decree shall be reinstated forthwith with the respondent being granted the liberty to commence execution proceedings as she deems it fit.
4. Costs of this Application shall abide the outcome of the suit.
Ruling read, dated and delivered at BUNGOMA this 17 th day of September 2026
Richard K.Koech
JUDGE
In the presence of:
Mr. Onchiri appearing virtually for the Plaintiff Respondent
Ms. Mukoya appearing virtually h/b for Mr. Nyamurongi for the Defendant Applicant
Mr. Enock Wakhu, C.A.
Right of appeal within 30 days.
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCCOMM NO. E003 OF 2023
SHEILA NEKESA SIFUNA (minor suing Thro’
her father & next friend STANLEY SIFUNA BUSURU………..…..PLAINTIFF
VERSUS
KENYA POWER & LIGHTING COMPANY LTD………….……DEFENDANT
RULING
1. Before this court is an Application dated 16 th October, 2025 brought under the provisions of Order 10 Rule 10 and 11 of the Civil Procedure Rules , Section 1A, 1B and 3A of the Civil Procedure Act and Article 159(2) of the Constitution of Kenya . It seeks the following Orders:
a) Spent
b) Spent
c) Judgement herein be vacated.
d) Leave be granted to the defendant/applicant to defend the instant suit.
e) Costs of this Application be provided for.
Background
2. The plaintiff respondent’s suit was instituted vide a plaint dated 20 th August, 2023 which was filed in court on 23 rd August, 2023.
3. It is acknowledged that both the plaint and summons to enter were served upon the defendant applicant which in turn forwarded the same to the applicant’s underwriters being Liaison Group (I.B.) Limited, by inadvertence the said underwriters failed to appoint advocates to represent the applicant leading to entry of judgment in default of defence against the applicant.
4. The record shows that the default judgment was entered on 27 th September, 2024 by the Deputy Registrar of this court and which is the subject of the present application.
5. It is apparent that upon realization by the applicant that judgment had been entered against it, its advocates on record engaged the counsel for the respondent with a view to having the judgment set aside with costs to the respondent but the negotiations did not bear any fruits.
6. The applicant’s application is supported by the affidavits of Michael Chege, Michael Ochieng and Herbert Nyamurongi all sworn on 16 th October, 2025.
7. The grounds in support of the Application are broadly that the Defendant/Applicant was served with pleadings in the matter herein. That the pleadings were forwarded to the applicant’s underwriters for appointment of advocates to defend the claim. However, due to an inadvertent oversight on the part of its underwriters the Defendant/Applicant’s failure to defend the suit only came to light when they were served with a notice to confirm filing of submissions.
8. Michael Chege who has made averments on behalf of the underwriters contracted by the Defendant/Applicant, that is Liaison Group, depones that an email was sent to him on 5 th September, 2023 by an employee of the Defendant/Applicant which forwarded summons and the plaint. He depones that he inadvertently failed to appoint a firm of advocates to defend the instant suit. He only realized this oversight when the Defendant/Applicant sent him an email on 5 th March, 2024 upon which he appointed the advocates on record for the Defendant/Applicant.
9. It is further deponed that the Defendant/Applicant’s advocate reached out to Mr. Omundi Bw’onchiri who is on record for the Plaintiff/Respondent and indicated a willingness to have the ex parte judgement set aside but only upon payment of throw away costs of Ksh. 100, 000/= .
10. That a consent to set aside the ex parte judgement was forwarded to the Respondent’s advocate but he instead, contrary to the expectations of the applicant, on 6 th August, 2025 sent a bill of costs to the applicant’s counsel.
11. The Applicant avers that the Applicant’s underwriters appointed the advocates on record who reached out to the Plaintiff/Respondent’s advocates who committed to having the judgment set aside upon delivery.
12. The Applicant prays for an opportunity to be heard and that it has a tenable defence and that the inadvertent omission on the part of the applicant’s underwriters should not be visited on the applicant.
13. The Applicant’s underwriters offered to pay throw away costs in the sum of Ksh. 100, 000/= to ameliorate any prejudice which the Respondent would suffer if the ex parte judgement is set aside.
14. The affidavit sworn by Michael Ochieng who depones that he is the Manager in charge of insurance services for the Defendant/Applicant reiterates the above grounds adding that the email of 5 th March, 2024 t o Michael Chege inquiring into the status of the case brought to the attention of the underwriter the omission on their part.
15. It is deponed that as such the underwriters were willing to pay throw away costs in the sum of Ksh. 100, 000/= and that the defence placed on record was tenable. It is also averred that it will be punitive to drive the applicant away from the seat of justice unheard
16. The applicant also expresses concern that a delay in hearing of the application would render it moot and nugatory as the applicant was apprehensive that the Respondent whose financial means was unknown would not be able to restitute any monies which may be paid out to her in the enforcement of the judgement of this honourable court.
17. It is also deponed that the suit ought to be defended as high payouts translate to increased insurance premium payments which constrains service delivery to the public. Further that the respondent is a minor who does not possess any financial means to restitute the said monies if the applicant is allowed to successfully defend the suit. That the judgement award is over Kshs.50,000,000.00 which is by all accounts ,a colossal amount of money. The applicant shall suffer substantial loss should the said sum be paid out.
Replying Affidavit
18. The replying affidavit sworn by Stanley Sifuna Busuru on 28 th February, 2026 contends that this application is frivolous, vexatious, scandalous and an abuse of the due process of court.
19. The Respondent depones that on the 6 th April, 2023 , his daughter who is the Plaintiff (Minor) herein while lawfully walking along Lunakwe-Chiliba road near Burangasi School within Bumula Sub-County -Bungoma County, was electrocuted by the Defendant’s live Electric wires that were attached to two Electric Poles that had fallen on the road and she sustained severe bodily injuries.
20. It is deponed that after her discharge from Hospital she instituted this suit on the 23 rd August 2023 and on the 30 th August 2023 the Defendant was served with Summons to enter Appearance and the Plaint, the respondent has annexed a return of service in proof of the averment.
21. It is also deponed that the Defendant was served on multiple other occasions for routine mentions but failed to appear despite service, the respondent has annexed a number of affidavits in proof of service. After interlocutory judgement was entered the suit was set down for hearing on 26 th February, 2025 by way of formal proof.
22. The Respondent avers that the Defendant has not demonstrated in their Affidavits the efforts they made to reach out to their underwriters from the time they forwarded Summons as alleged while taking into consideration the several reminders the Respondent’s advocate made to them. The Respondent maintains that the Defendants have not been keen in this case, a fact that has prejudiced the minor Plaintiff who sustained very severe bodily injuries that were described by her doctor as being grievous.
23. Further, that the negotiations between advocates herein were done on a without prejudice basis.
Supplementary Affidavit
24. Pursuant to leave granted by this court on 16 th February, 2026 the Defendant/Applicant put in a supplementary affidavit dated 19 th March, 2026 sworn by Michael Ocheing. It is deponed that the Defendant/Applicant did not receive the notices stated to have been sent by the Plaintiff/Respondent by way of email for the reason that there are instances where the applicant’s software filters out emails perceived to be spam and in such instances the applicant would have no notice that an email had been sent to it. However, that whenever physical service was effected the Applicant acted promptly.
25. A ruling reinstating this Application after it had been dismissed on 28 th October, 2025 was delivered on 16 th February, 2026 whereupon parties took directions on this present application. The Application was directed to be canvassed by way of written submissions. The Defendant/Applicant filed submissions dated 20 th March, 2026 while the Plaintiff/Respondent filed submissions dated 28 th February, 2026.
Defendant/Applicant’s Submissions
26. Counsel for the Applicant submits that the court has wide discretion in setting aside a default judgement. Counsel argues that the court should not fetter that discretion by imposing conditions on itself. Reliance was placed on the cases of Patel v East Africa Cargo Handling Services Ltd [1974] EA 75 cited in the case of Kariuki v Standard Group Limited & 2 others (Civil Suit E190 of 2020) [2022] KEHC 10505 (KLR) (Civ) (17 June 2022).
27. Counsel submits that if conditions are imposed in setting aside a default judgement, they ought to be fair. Reliance was placed on Yooshin Engineering Corporation v Aia Architects Limited (Civil Appeal E074 of 2022) [2023] KECA 872 (KLR) (7 July 2023) (Judgment) and Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR) citing Esther Wamaitha Njihia & two others vs. Safaricom Ltd.
28. It is also submitted that the draft defence placed on record raises triable issues as to whether the accident actually occurred, if the defendant applicant was blameworthy, if the injuries pleaded had been sustained and whether the plaintiff was entitled to the reliefs sought.
29. It is also submitted that the Respondent had expressed willingness to accept the sum of Kshs.100,000.00 as thrown away costs as a condition for setting aside judgement which counsel maintains the Applicant is still amenable to paying.
30. Counsel submits that the failure by the applicant to appear and defend the suit was purely out of inadvertence on the part of its insurers and that it had nothing to do with the applicant which did not in any way intend to delay justice and that the failure to defend the suit was wholly unintentional.
31. It is further submitted by counsel that the reason for the default to enter appearance and file a defence was plausible, he places reliance in the case of Wilson Cheboi Yego v Samuel Kipsang Cheboi [2019] KECA 638 (KLR). Further that the failure to put in a defence was not one of negligence but a human blunder, the applicant relies in the case of Philip Keiptoo Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) .
32. Counsel is urging this court to award throw away costs of Ksh. 100, 000/= and to allow the applicant to defend the suit on its merits.
Plaintiff/Respondent’s Submissions
33. Counsel for the Plaintiff/Respondent submits that the orders sought from the court are discretionary and equitable remedies but that as demonstrated the Applicant had been served severally and it was undeserving of such orders as equity aids the vigilant and not the indolent. That the Applicant had not approached the court with clean hands as that it had sought to delay or obstruct justice. Reliance was placed on the cases of Mohamed Shally (Shah Sese) V Fulson Co. Limited & Another (2000) eKLR and Richard Nchapai Leiyangu vs IEBC & 2 Others.
34. It is further submitted that the Plaintiff/Respondent who is a minor suffered grievous injuries from the accident for which the Applicant is blamed. That in her pursuit of justice she instituted the instant suit against the Applicant and served them with pleadings and notices on several occasions which were ignored. It is also submitted that the Applicant cannot hide behind the underwriters or advocates without any explanation as to why it never made follow ups. Reliance is placed on the cases of Nature Pharmacy Limited & Another =VS= Gichuhi (Civil Appeal 245 of 2016)(2022) KECA 827 ( KLR) (27 May 2022) Judgment) and Omwoyo =VS= African Highlands and Produce Co. Limited (2002) I KLR.
Issues for Determination
35. In light of the foregoing the following issues arise for determination:
i. Whether the Ex-Parte judgement is regular.
ii. Whether the Ex-parte judgement ought to be set aside.
iii. If the answer to (ii) above is in the affirmative, what conditions should be imposed on the part of the applicant.
Analysis & Determination
i) Whether the Ex-Parte judgement is regular
36. At the onset it is important to state that service is not contested. The Defendant/Applicant does not dispute that service of summons to enter appearance was effected upon it. As such the default judgment herein is regular. However, this court still retains the discretion to set aside the regular judgement.
37. The Civil Procedure Rules, Order 10 Rule 10 provides that:
Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.
38. The court of appeal in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) held thus on the power of the court to set aside ex-parte judgements:
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 others. 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)
39. It is trite that a court has wide discretion to set aside a default judgement, however, this power is to be exercised judiciously with due regard to the principles established in the cited long line of authorities, with a view to doing justice to the parties.
ii) Whether the Ex-parte judgement ought to be set aside.
40. The Defendant/Applicant pleaded that its underwriters, Liaison Group, received the pleadings on 5 th September, 2023 , but inadvertently failed to instruct advocates to defend the claim and that the omission was discovered on 5 th March, 2024 , some six months later.
41. The default to enter appearance on the part of the Defendant/Applicant appears in essence to be an institutional lapse in the handling of the file rather than a deliberate or persistent attempt to delay and or obstruct justice.
42. An oversight of this kind, occurring within the chain between an insured corporate defendant and its underwriters, is the sort of inadvertence that is curable by an award of costs rather than being fatal to an application of this nature. The court of appeal in the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) while addressing itself to an application of this nature , Apaloo JA (as he then was) stated thus;
I think a distinguished equity judge has said:
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.”
I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline. In this case, the appellants offered to pay the costs. The respondent will not agree.
43. The Defendant/Applicant's draft defence as annexed to the instant application denies the occurrence of the accident as pleaded, and attributes it in the alternative, if it indeed it occurred, to the Plaintiff herself rather than to any negligence on the part of the Applicant.
44. The draft defence is not confined to quantum of damages or to a technical point; it puts in issue the very occurrence of the incident and, in the alternative, liability for it, which prima facie are triable issues going to the root of the claim.
45. A draft defence disclosing an arguable case of this kind warrants the exercise of the court’s discretion. This court is satisfied that a defendant facing a claim of the magnitude pleaded here with judgment entered after formal proof in a sum exceeding Kshs. 50,000,000/= and raising an arguable defence ought, ordinarily, to be heard on the merits.
iii) What conditions should be imposed if the judgement is set aside .
46. The Court of Appeal in Yooshin Engineering Corporation v Aia Architects Limited [2023] KECA 872 (KLR) held that;
“However, even where the judgement is regular, the court still retains the wide discretion to set the same aside though if the Court decides to set aside the judgement, depending on the circumstances, it may do so on conditions that are just. That discretion, being wide, the main concern is for the court to do justice to the parties, and in so doing the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. It has however to ask itself under what conditions, if any, it ought to set aside the judgement and such conditions, if appropriate, must be just to both the Plaintiff and the Defendant.”
47. Thrown away costs are compensatory and are pegged to the cost, inconvenience and prejudice actually occasioned to the respondent by the default to enter appearance and the prosecution of the application to set aside a judgment duly entered.
48. While the size of the award is highly relevant to whether the Applicant should be heard at all, it is not by itself, a basis for inflating throw away costs into something closer to a security for stay of judgement.
49. Accordingly, this court finds that a sum of Ksh. 120, 000/= as throw away costs payable to the Plaintiff/Respondent as condition to set aside the default judgement is appropriate and allows the case to be heard on its merits.
50. The upshot is that the Application dated 16 th October, 2025 is allowed as prayed and the following Orders issue:
1. The default judgment entered herein and the consequent decree be and are hereby set aside.
2. The Defendant/Applicant is granted leave to file and serve its Defence within 14 days from the date of this Ruling.
3. As a condition for the grant of this order, the Defendant/Applicant shall pay to the Plaintiff/Respondent throw away costs of Kshs. 120,000/= within 14 days of this Ruling, failing which this order shall stand vacated and the judgment and decree shall be reinstated forthwith with the respondent being granted the liberty to commence execution proceedings as she deems it fit.
4. Costs of this Application shall abide the outcome of the suit.
Ruling read, dated and delivered at BUNGOMA this 17 th day of September 2026
Richard K.Koech
JUDGE
In the presence of:
Mr. Onchiri appearing virtually for the Plaintiff Respondent
Ms. Mukoya appearing virtually h/b for Mr. Nyamurongi for the Defendant Applicant
Mr. Enock Wakhu, C.A.
Right of appeal within 30 days.