REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
CIVIL APPEAL NO. E056 OF 2024
(Coram: Andayi W. F., J.)
THEOPHILUS MWONGELA.............................………………………1 ST APPELLANT
DANIEL KARISA KALAMA...............................................................2 ND APPELLANT
VERSUS
SIMON MERIKI NGONDI.......................................................................RESPONDENT
(Being an Appeal from the Ruling and Order of Hon. Ritah Amwayi, Principal Magistrate made on 23 rd April 2024 in Kaloleni Magistrates Court Civil Suit No. E009 of 2022)
JUDGMENT
1. This appeal is related to the appeals below and therefore this judgment will apply to those appeals as well, as they arise out of the same accident and they involve the same issues for determination. These are Malindi High Court Civil Appeal Nos:
a. E057 of 2024, Theophilus Mwongela and Daniel Karisa Kalama v Florence Kabibi Mutua,
b. E058 of 2024, Theophilus Mwongela and Daniel Karisa Kalama Rukia Kazungu Katana and
c. E059 of 2024, Theophilus Mwongela and Daniel Karisa Kalama Benson Mkoka Mumba.
2. The appeal herein through a memorandum of appeal dated 15 th May 2024 (this applies to all the appeals) seeks for orders that the entire ruling and order made on 23 rd April 2024 be set aside and substituted with an order allowing the appeal (sic)(it should be allowing the appellant’s Notice of Motion application dated (the various applications bear different dates from 7 th February 2024 to 27 th February 2024). That application in the lower court had sought orders inter alia that the lower court set aside, vary, vacate and/or review the interlocutory judgment entered on 20 th May, the ex-parte judgment entered on 19 th October 2022 and the subsequent decree issued against the defendants/applicants now appellants herein and tht the suit be set down for hearing and determination on merits. Further that the appellants be granted unconditional leave to defend the suit as per the draft annexed defence. In the impugned ruling the trial court found that the appellants had been duly served with summons to enter appearance but failed to do so.
3. The appeal is couched in some sixteen paragraphs which are basically arguments in support of the appeal. Such argumentative grounds offend Order 42 Rule 1(2) which provides that grounds of appeal shall be set out without any argument or narrative. The main contention by the appellants is that the learned trial magistrate erred in law and in fact in dismissing the application against the weight of the evidence tendered by the 1 st appellant that she was never served with summons to enter appearance in the suit.
4. The appeal was canvassed by way of written submissions. The appellant has not filed submissions to the appeal. Learned counsel for the respondent filed submissions urging his client’s case.
5. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
6. I have considered the trial court record, the grounds of appeal as set out in the memorandum, the submissions by learned counsel for the respondent. The issue for determination is whether the learned trial magistrate erred in dismissing the application to set aside the default judgment and the consequential orders thereto.
7. Order 10 Rule 11 of the Civil Procedure Rules under which the application to set aside the default judgment was filed in the trial court gives the court wide discretionary power to set aside a default judgment. The rule provides that:
“Where judgment has been entered under this Order, the court may set aside such judgment and any consequential decree or Order upon such terms as are just.”
8. Authorities abound holding that the court has a wide discretion under Order 10 Rule 11 of the Civil Procedure Rules to set aside a judgment in default of appearance upon terms as are just to avoid injustice. In the case of Mbaki & Others vs. Macharia & Another [2005] 2 EA 206 the Court of Appeal emphasized on the right of a party in a suit to be heard. However, there are also many other authorities which emphasize that the discretion will not be exercised to assist a party who deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice (see the case of Shah v Mbogo & Another [1957] EA 116).
9. In exercising its discretion under this rule, the court should be guided by the demands of rendering justice and therefore the discretion should be exercised judiciously. In the case of Nderitu & another v Ghikas & another [2016] KECA 470 (KLR) , the Court of Appeal while considering the issue of setting aside a default judgment stated thus :
“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules , to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another v. Shah (supra), Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75 , Chemwolo & Another v. Kubende [1986] KLR 492 and CMC Holdings v. Nzioki [2004] 1 KLR 173).
In an irregular default judgment, on the other hand, 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 justitiae , 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. In addition, the court will not venture into considerations of whether the intended defence raises triable issue 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 v. Attorney-General [1986-1989] EA 456). The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711:
“[T]here must be ever-present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
10. I consider this decision to summarize comprehensively the factors to consider while exercising the discretion whether or not to set aside a default judgment.
11. In his application seeking to set aside the default judgment, the 1 st appellant denied that he was served with the summons to enter appearance contrary to what was deposed by the process server Alex Philip Nzuki in his affidavit of service sworn on 8 th March 2022 and filed in court on 20 th May 2022 that he had served him on 5 th March 2022. The learned trial magistrate considered that issue and found that there was proper service of the summons to enter appearance upon both appellants. The learned trial magistrate held that upon carefully considering the affidavit of service and summons to enter appearance on record, it was undisputed that the phone details shown to court belonged to the defendants and that the process server also indicated where he got the phone details from. She went on to state that:
“It is further clear that the 2 nd Defendant was served with Summons to Enter Appearance dated 1 st February 2022 to which he appended his signature. It is inconceivable that the process server would serve only the 2 nd Defendant and not the 1 st Defendant. Accordingly, it is more likely, as stated by the Plaintiff/Respondent that the 1 st Defendant was served but declined to sign.”
12. In the affidavit supporting the appellant’s application for setting aside the 1 st appellant Theophilus Mwongela Kivilu disputed service and deposed that he was not served and he had no encounter with the alleged process server Alex Philip Nzuki as deposed in his affidavit of service. He stated that the depositions by the process server were falsehoods and sought to have the process server cross-examined on the contents of his affidavit of service.
13. In this appeal, the 1 st appellant contends that the learned trial magistrate erred by finding that the 1 st appellant had not disputed that phone number 0724 889 595 was his.
14. Indeed, the process server deposed that he had traced the appellants through their respective phone numbers and upon calling each of them, he met them at Mariakani petro station and that at the time of service, they were together.
15. The learned trial magistrate believed the depositions by the process server. Learned counsel for the respondent submits that this was an exercise of discretion by the trial court and this court should be slow to disturb its findings. In support of that submission he has cited the case of Kibira v Independent Electoral & Boundaries Commission & 2 others [2019] KESC 62 (KLR) where the Supreme Court held that:
“We reiterate that in an appeal from a decision based on an exercise of discretionary powers, an appellant has to show that the decision was based on a whim, was prejudicial or was capricious. This was as determined in the New Zealand Supreme Court case of Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1 (Kacem)where it was held [paragraph 32]:
“In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case, the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.”
16. It follows from this decision that the appellants herein have to demonstrate where the trial court erred or wrongly exercised its discretion.
17. The 1 st appellant’s contention is that the process server falsely deposed that he had obtained their phone numbers from the loan application phone. The process server deposed that he obtained the two numbers 0720 207 263 for Daniel Karisa Kalama and 0724 889 595 for Theophilus Mwongela Kiluvu from loan application forms that formed part of the list of documents. This loan application form was made available by the Kenya Women Microfinance Bank in its application to be struck off the proceedings.
18. I have looked at the loan application form and indeed it bears the said number 0720 207 263 against the name of Daniel Karisa Kalama as a guarantor/applicant of a loan from the bank dated 15 th July 2015. The copy of records for registration details of the motor vehicle registration number KCG 578J showed the registered ownership of the vehicle as Kenya Women Finance trust DTM Limited and Daniel Karisa Kalama as at 24 th January 2022. It is therefore correct to surmise that the phone number 0720 207 263 belonged to the 2 nd appellant herein. Indeed, that was never disputed.
19. However, the phone number 0724 889 595 does not appear in the loan application form and there is no other loan application form among the documents from which the process server would have obtained the phone number for Theophilus. Therefore, the deposition by the process server that he obtained it from the loan application form is false. In spite of that in the replying affidavit to the application to set aside the default judgment, the respondent herein swore that whereas the phone number for Daniel Karisa Kalama was obtained from the loan application form, that of Theophilus Mwongela Kivilu was obtained from the investigating officer of the case PC Githinji at Rabai Police station who at the same time said that the said Theophilus Mwongela Kivilu was the driver of the lorry. I have looked at the police abstract and indeed it indicates the investigating officer of the case was PC Githinji.
20. Further, as deposed by the respondent in her replying affidavit the 1 st appellant has never disputed that the phone number 0724 889 595 is his. The respondent annexed to her said affidavit a screenshot of an M-Pesa message showing that as at 4 th March 2024, the phone number was still registered in the name of Theophilus Kiluvu, the 1 st respondent herein. It means that the information received from the investigating officer that the phone number indeed belonged to the 1 st respondent and which the process server used to trace him was correct. Therefore, the error by the procees server in his affidavit of service indicating that he obtained the phone number from the loan application form was explained in the replying affidavit of the respondent and I find that it was a satisfactory explanation.
21. I find further that the 1 st respondent never disputed that he was at Mariakani Petro station on the date of service and that he was in company of the 2 nd respondent. There is evidence on record that the two should be known to each other because whereas Daniel Karisa Kalama was the registered owner of the vehicle, Theophilus Mwongeli Kiluvu, the 1 st appellant was the one in whose name the insurance cover was issued, thereby also making him an owner of the vehicle. Therefore, the fact that they were together at the time of service could not have been made up by the process server. In a civil case, proof is on a balance of probability. In the present case, the probability that the 1 st appellant was together with the 2 nd appellant at the time of service was higher than the probability that he was not. In the circumstances, I find that the learned trial magistrate’s finding that the likelihood of the 1 st appellant having been served at the same time as the 2 nd appellant was high was based on sound evidence.
22. Further, in the affidavit of service, the process server Alex Philip Nzuki deposed that when he met the two appellants, Theophilus Mwongela Kiluvu informed him that he was the driver of the accident vehicle. This confirmed the information the investing officer had given earlier at the time he also gave the phone number.
23. Daniel Karisa Kalama, the 2 nd appellant has not disputed service at all and he did not participate in the application for setting aside the default judgment before the trial court. For him, there was evidence that he received the summons and signed for them. The 1 st respondent made his application as though it was for both of them but there is nowhere he deposed that the 1 st appellant had given him instructions to file the application on his behalf as well.
24. I note that the 1 st appellant had made an indication that he would be asking the court to have the process server called for cross-examination. However, when the application came up for hearing, his learned counsel never made such a request. He was comfortable to have the application proceed on the affidavits and written submissions of the parties. In that case, the learned trial magistrate cannot be faulted for failing to call for cross-examination of the process server.
25. I am satisfied from the material on record, that the learned trial magistrate reached the correct finding that the appellant was properly served with the summons to enter appearance and plaint, but failed to enter appearance and file defence within the required period, and the default judgment was therefore regular.
26. The next issue is whether or not the trial court was correct in declining to set aside the default judgment and allow the appellant to be heard in the matter. It has been held in numerous decisions that, “the fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…” (see Wachira Karani vs. Bildad Wachira (2016) eKLR and David Gicheru v Gicheha Farms Limited & another [2020] eKLR ). I am guided by these decisions.
27. The provisions of Order 10 Rule 11 on the court’s power to set aside a default judgment find exposition in the case of Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd vs Augustine Kubede [1982-1988] KAR , where the court held:
“The Court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and or the respective merits of the parties”.
28. In exercising its discretion under this rule, the court should be guided by the demands of rendering justice to the parties. This is a judicial discretion, which should be exercised judiciously. From the James Kanyiita case some of the factors the court has to consider are the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other.
29. On the length of time, the interlocutory judgment was entered on 6 th July 2022 while the final judgment was entered on 19 th October 2022. The application to set aside the said judgment was made on 9 th February 2024 (the earliest date in the several applications with the latest being 27 th February 2024). This was after he had been arrested and presented to court on 31 st October 2023 in execution of the decree. 6 th July 2022 to 9 th February 2024 is a period of 19 months, just about one and half years.
30. What constitutes inordinate delay depends on the circumstances of each case. As submitted by learned counsel for the respondent, in the present case, what is significant is the period between the time the 1 st appellant was presented to court on 31 st October 2023 and making the application on 9 th February 2024, a period of about three months. When the 1 st appellant was presented to court he alleged that he was not aware of the cases. The court below and this court have found that in fact he was. Secondly he offered to settle the decretal sums in three months in all the cases arising out of the accident. In spite of the learned counsel for the respondent asking that he be committed to civil jail, the trial court accorded him an opportunity to remain outside and pay the amount in installments. The matter was fixed for mention afterwards on 31 st January 2024 but he never turned up on the appointed date. He turned up with the application on 9 th February 2024. There was no explanation whatsoever why he did not file the application immediately he was let go or why he failed to turn up in court for the mention. That is reminiscent of conduct of a person who did not care much about the case. He appears to have made the application to forestall his second arrest. In the circumstances, I find that there was inordinate delay in his filing the application to set aside the default judgment.
31. In note that the learned trial magistrate did not consider the draft statement of defence annexed to the appellant’s supporting affidavit filed before the trial court.
32. In the case of, Sebei District Administration v Gasyali & Others [1968] E.A. 300 Sheridan J, observed that;
“The nature of the action should be considered. The defence if one has been brought to the notice of the court, however irregularly, should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered and finally, I think, it should always be remembered that to deny the subject a hearing should be the last resort of the court.”
33. Similarly, in the case of Tree Shade Motors Limited v D.T. Dobie and Company (K) Limited and Another [1998] eKLR) cited by learned counsel for the appellant it was held that inter alia that:
“…where a draft defence is tendered with the application to set aside the default judgment, the court is obliged to consider it to see if it raises a reasonable defence to the Plaintiff’s claim. If it does, the defendant should be given leave to enter and defend.”
34. I have considered the said draft defence. Learned counsel for the respondent submits that there is no reasonable defence raised by the 1 st appellant because it is a general denial that is evasive, inconsistent and contradictory, it is made in the alternative and it is a general traverse.
35. I am inclined to agree with learned counsel’s submission. The draft defence alleges that the plaintiff (respondent herein) was the author of her misfortune. This is in spite of the averments in the plaint the plaintiff was a fare paying passenger in motor vehicle registration number KCN 577W. This means the 1 st appellant gave no regard to the plaintiff’s averments in the plaint.
36. The 1 st appellant then pleads in the alternative that the accident was caused and/or contributed to by the negligence of the driver of motor vehicle registration number KCN 577W. The respondent’s case as pleaded in the plaint that this was a case of rear-end collision where the 1 st appellant’s lorry rammed into the rear of the other vehicle. In such a case, under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See the case of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) .
37. Consequently, I find that the draft defence does not raise any triable issue.
38. The lackadaisical conduct of the 1 st appellant in this matter right from the time he was served with summons to enter appearance when he failed to do so, upon his arrest in execution and then released to start paying the decretal sum but failed to do so and even to attend court for the mention afterwards, his delay in filing the application to set aside and his failure to file submissions in this appeal means that even if given a chance to defend the suit, to which I have found he has no triable issue, leads to the conclusion that a lot of prejudice will be occasioned to the respondents. He appears to be more keen on delaying the conclusion of the case rather than having it determined on the merits. I therefore find that the respondent is likely to suffer more prejudice than the 1 st appellant is leave is granted for him to enter appearance and file defence out of time.
39. On the whole, I find that the interests of justice will be better served by having the case proceed to its logical conclusion on the trajectory of execution that it was before the 1 st appellant filed his application seeking to set aside the default judgment.
40. Consequently, having considered this appeal, I find the same has no merit, and it would be unfair and unjust to set aside the ruling of the trial court dismissing the 1 st applicant’s application dated 9 th February 2024 and any of the other applications in Kaloleni Magistrates Court Civil Case Nos E008 of 2022, E0010 and E013 all of 2022. The appeal herein and the appeals in Malindi High Court Civil Appeal Nos E057 of 2024, E058 of 2024, E059 of 2024 are hereby dismissed.
41. The 1 st respondent shall pay the costs of this appeal.
42. Orders accordingly.
Written, dated and signed this 13 th day of August 2025
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams this 13 th day of August 2025 .
In the presence of:
N/A for the Appellants.
N/A for the Respondent.
Ummu: Court assistant
ANDAYI W. F.
JUDGE
malindi hC ca No. E057/202414/setting aside default judgment
IN THE HIGH COURT OF KENYA AT MALINDI
CIVIL APPEAL NO. E056 OF 2024
(Coram: Andayi W. F., J.)
THEOPHILUS MWONGELA.............................………………………1 ST APPELLANT
DANIEL KARISA KALAMA...............................................................2 ND APPELLANT
VERSUS
SIMON MERIKI NGONDI.......................................................................RESPONDENT
(Being an Appeal from the Ruling and Order of Hon. Ritah Amwayi, Principal Magistrate made on 23 rd April 2024 in Kaloleni Magistrates Court Civil Suit No. E009 of 2022)
JUDGMENT
1. This appeal is related to the appeals below and therefore this judgment will apply to those appeals as well, as they arise out of the same accident and they involve the same issues for determination. These are Malindi High Court Civil Appeal Nos:
a. E057 of 2024, Theophilus Mwongela and Daniel Karisa Kalama v Florence Kabibi Mutua,
b. E058 of 2024, Theophilus Mwongela and Daniel Karisa Kalama Rukia Kazungu Katana and
c. E059 of 2024, Theophilus Mwongela and Daniel Karisa Kalama Benson Mkoka Mumba.
2. The appeal herein through a memorandum of appeal dated 15 th May 2024 (this applies to all the appeals) seeks for orders that the entire ruling and order made on 23 rd April 2024 be set aside and substituted with an order allowing the appeal (sic)(it should be allowing the appellant’s Notice of Motion application dated (the various applications bear different dates from 7 th February 2024 to 27 th February 2024). That application in the lower court had sought orders inter alia that the lower court set aside, vary, vacate and/or review the interlocutory judgment entered on 20 th May, the ex-parte judgment entered on 19 th October 2022 and the subsequent decree issued against the defendants/applicants now appellants herein and tht the suit be set down for hearing and determination on merits. Further that the appellants be granted unconditional leave to defend the suit as per the draft annexed defence. In the impugned ruling the trial court found that the appellants had been duly served with summons to enter appearance but failed to do so.
3. The appeal is couched in some sixteen paragraphs which are basically arguments in support of the appeal. Such argumentative grounds offend Order 42 Rule 1(2) which provides that grounds of appeal shall be set out without any argument or narrative. The main contention by the appellants is that the learned trial magistrate erred in law and in fact in dismissing the application against the weight of the evidence tendered by the 1 st appellant that she was never served with summons to enter appearance in the suit.
4. The appeal was canvassed by way of written submissions. The appellant has not filed submissions to the appeal. Learned counsel for the respondent filed submissions urging his client’s case.
5. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
6. I have considered the trial court record, the grounds of appeal as set out in the memorandum, the submissions by learned counsel for the respondent. The issue for determination is whether the learned trial magistrate erred in dismissing the application to set aside the default judgment and the consequential orders thereto.
7. Order 10 Rule 11 of the Civil Procedure Rules under which the application to set aside the default judgment was filed in the trial court gives the court wide discretionary power to set aside a default judgment. The rule provides that:
“Where judgment has been entered under this Order, the court may set aside such judgment and any consequential decree or Order upon such terms as are just.”
8. Authorities abound holding that the court has a wide discretion under Order 10 Rule 11 of the Civil Procedure Rules to set aside a judgment in default of appearance upon terms as are just to avoid injustice. In the case of Mbaki & Others vs. Macharia & Another [2005] 2 EA 206 the Court of Appeal emphasized on the right of a party in a suit to be heard. However, there are also many other authorities which emphasize that the discretion will not be exercised to assist a party who deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice (see the case of Shah v Mbogo & Another [1957] EA 116).
9. In exercising its discretion under this rule, the court should be guided by the demands of rendering justice and therefore the discretion should be exercised judiciously. In the case of Nderitu & another v Ghikas & another [2016] KECA 470 (KLR) , the Court of Appeal while considering the issue of setting aside a default judgment stated thus :
“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules , to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another v. Shah (supra), Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75 , Chemwolo & Another v. Kubende [1986] KLR 492 and CMC Holdings v. Nzioki [2004] 1 KLR 173).
In an irregular default judgment, on the other hand, 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 justitiae , 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. In addition, the court will not venture into considerations of whether the intended defence raises triable issue 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 v. Attorney-General [1986-1989] EA 456). The Supreme Court of India forcefully underlined the importance of the right to be heard as follows in Sangram Singh v. Election Tribunal, Koteh, AIR 1955 SC 664, at 711:
“[T]here must be ever-present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”
10. I consider this decision to summarize comprehensively the factors to consider while exercising the discretion whether or not to set aside a default judgment.
11. In his application seeking to set aside the default judgment, the 1 st appellant denied that he was served with the summons to enter appearance contrary to what was deposed by the process server Alex Philip Nzuki in his affidavit of service sworn on 8 th March 2022 and filed in court on 20 th May 2022 that he had served him on 5 th March 2022. The learned trial magistrate considered that issue and found that there was proper service of the summons to enter appearance upon both appellants. The learned trial magistrate held that upon carefully considering the affidavit of service and summons to enter appearance on record, it was undisputed that the phone details shown to court belonged to the defendants and that the process server also indicated where he got the phone details from. She went on to state that:
“It is further clear that the 2 nd Defendant was served with Summons to Enter Appearance dated 1 st February 2022 to which he appended his signature. It is inconceivable that the process server would serve only the 2 nd Defendant and not the 1 st Defendant. Accordingly, it is more likely, as stated by the Plaintiff/Respondent that the 1 st Defendant was served but declined to sign.”
12. In the affidavit supporting the appellant’s application for setting aside the 1 st appellant Theophilus Mwongela Kivilu disputed service and deposed that he was not served and he had no encounter with the alleged process server Alex Philip Nzuki as deposed in his affidavit of service. He stated that the depositions by the process server were falsehoods and sought to have the process server cross-examined on the contents of his affidavit of service.
13. In this appeal, the 1 st appellant contends that the learned trial magistrate erred by finding that the 1 st appellant had not disputed that phone number 0724 889 595 was his.
14. Indeed, the process server deposed that he had traced the appellants through their respective phone numbers and upon calling each of them, he met them at Mariakani petro station and that at the time of service, they were together.
15. The learned trial magistrate believed the depositions by the process server. Learned counsel for the respondent submits that this was an exercise of discretion by the trial court and this court should be slow to disturb its findings. In support of that submission he has cited the case of Kibira v Independent Electoral & Boundaries Commission & 2 others [2019] KESC 62 (KLR) where the Supreme Court held that:
“We reiterate that in an appeal from a decision based on an exercise of discretionary powers, an appellant has to show that the decision was based on a whim, was prejudicial or was capricious. This was as determined in the New Zealand Supreme Court case of Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1 (Kacem)where it was held [paragraph 32]:
“In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case, the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.”
16. It follows from this decision that the appellants herein have to demonstrate where the trial court erred or wrongly exercised its discretion.
17. The 1 st appellant’s contention is that the process server falsely deposed that he had obtained their phone numbers from the loan application phone. The process server deposed that he obtained the two numbers 0720 207 263 for Daniel Karisa Kalama and 0724 889 595 for Theophilus Mwongela Kiluvu from loan application forms that formed part of the list of documents. This loan application form was made available by the Kenya Women Microfinance Bank in its application to be struck off the proceedings.
18. I have looked at the loan application form and indeed it bears the said number 0720 207 263 against the name of Daniel Karisa Kalama as a guarantor/applicant of a loan from the bank dated 15 th July 2015. The copy of records for registration details of the motor vehicle registration number KCG 578J showed the registered ownership of the vehicle as Kenya Women Finance trust DTM Limited and Daniel Karisa Kalama as at 24 th January 2022. It is therefore correct to surmise that the phone number 0720 207 263 belonged to the 2 nd appellant herein. Indeed, that was never disputed.
19. However, the phone number 0724 889 595 does not appear in the loan application form and there is no other loan application form among the documents from which the process server would have obtained the phone number for Theophilus. Therefore, the deposition by the process server that he obtained it from the loan application form is false. In spite of that in the replying affidavit to the application to set aside the default judgment, the respondent herein swore that whereas the phone number for Daniel Karisa Kalama was obtained from the loan application form, that of Theophilus Mwongela Kivilu was obtained from the investigating officer of the case PC Githinji at Rabai Police station who at the same time said that the said Theophilus Mwongela Kivilu was the driver of the lorry. I have looked at the police abstract and indeed it indicates the investigating officer of the case was PC Githinji.
20. Further, as deposed by the respondent in her replying affidavit the 1 st appellant has never disputed that the phone number 0724 889 595 is his. The respondent annexed to her said affidavit a screenshot of an M-Pesa message showing that as at 4 th March 2024, the phone number was still registered in the name of Theophilus Kiluvu, the 1 st respondent herein. It means that the information received from the investigating officer that the phone number indeed belonged to the 1 st respondent and which the process server used to trace him was correct. Therefore, the error by the procees server in his affidavit of service indicating that he obtained the phone number from the loan application form was explained in the replying affidavit of the respondent and I find that it was a satisfactory explanation.
21. I find further that the 1 st respondent never disputed that he was at Mariakani Petro station on the date of service and that he was in company of the 2 nd respondent. There is evidence on record that the two should be known to each other because whereas Daniel Karisa Kalama was the registered owner of the vehicle, Theophilus Mwongeli Kiluvu, the 1 st appellant was the one in whose name the insurance cover was issued, thereby also making him an owner of the vehicle. Therefore, the fact that they were together at the time of service could not have been made up by the process server. In a civil case, proof is on a balance of probability. In the present case, the probability that the 1 st appellant was together with the 2 nd appellant at the time of service was higher than the probability that he was not. In the circumstances, I find that the learned trial magistrate’s finding that the likelihood of the 1 st appellant having been served at the same time as the 2 nd appellant was high was based on sound evidence.
22. Further, in the affidavit of service, the process server Alex Philip Nzuki deposed that when he met the two appellants, Theophilus Mwongela Kiluvu informed him that he was the driver of the accident vehicle. This confirmed the information the investing officer had given earlier at the time he also gave the phone number.
23. Daniel Karisa Kalama, the 2 nd appellant has not disputed service at all and he did not participate in the application for setting aside the default judgment before the trial court. For him, there was evidence that he received the summons and signed for them. The 1 st respondent made his application as though it was for both of them but there is nowhere he deposed that the 1 st appellant had given him instructions to file the application on his behalf as well.
24. I note that the 1 st appellant had made an indication that he would be asking the court to have the process server called for cross-examination. However, when the application came up for hearing, his learned counsel never made such a request. He was comfortable to have the application proceed on the affidavits and written submissions of the parties. In that case, the learned trial magistrate cannot be faulted for failing to call for cross-examination of the process server.
25. I am satisfied from the material on record, that the learned trial magistrate reached the correct finding that the appellant was properly served with the summons to enter appearance and plaint, but failed to enter appearance and file defence within the required period, and the default judgment was therefore regular.
26. The next issue is whether or not the trial court was correct in declining to set aside the default judgment and allow the appellant to be heard in the matter. It has been held in numerous decisions that, “the fundamental duty of the Court is to do justice between the parties. It is in turn, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon the merits of the matter…” (see Wachira Karani vs. Bildad Wachira (2016) eKLR and David Gicheru v Gicheha Farms Limited & another [2020] eKLR ). I am guided by these decisions.
27. The provisions of Order 10 Rule 11 on the court’s power to set aside a default judgment find exposition in the case of Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd vs Augustine Kubede [1982-1988] KAR , where the court held:
“The Court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and or the respective merits of the parties”.
28. In exercising its discretion under this rule, the court should be guided by the demands of rendering justice to the parties. This is a judicial discretion, which should be exercised judiciously. From the James Kanyiita case some of the factors the court has to consider are the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other.
29. On the length of time, the interlocutory judgment was entered on 6 th July 2022 while the final judgment was entered on 19 th October 2022. The application to set aside the said judgment was made on 9 th February 2024 (the earliest date in the several applications with the latest being 27 th February 2024). This was after he had been arrested and presented to court on 31 st October 2023 in execution of the decree. 6 th July 2022 to 9 th February 2024 is a period of 19 months, just about one and half years.
30. What constitutes inordinate delay depends on the circumstances of each case. As submitted by learned counsel for the respondent, in the present case, what is significant is the period between the time the 1 st appellant was presented to court on 31 st October 2023 and making the application on 9 th February 2024, a period of about three months. When the 1 st appellant was presented to court he alleged that he was not aware of the cases. The court below and this court have found that in fact he was. Secondly he offered to settle the decretal sums in three months in all the cases arising out of the accident. In spite of the learned counsel for the respondent asking that he be committed to civil jail, the trial court accorded him an opportunity to remain outside and pay the amount in installments. The matter was fixed for mention afterwards on 31 st January 2024 but he never turned up on the appointed date. He turned up with the application on 9 th February 2024. There was no explanation whatsoever why he did not file the application immediately he was let go or why he failed to turn up in court for the mention. That is reminiscent of conduct of a person who did not care much about the case. He appears to have made the application to forestall his second arrest. In the circumstances, I find that there was inordinate delay in his filing the application to set aside the default judgment.
31. In note that the learned trial magistrate did not consider the draft statement of defence annexed to the appellant’s supporting affidavit filed before the trial court.
32. In the case of, Sebei District Administration v Gasyali & Others [1968] E.A. 300 Sheridan J, observed that;
“The nature of the action should be considered. The defence if one has been brought to the notice of the court, however irregularly, should be considered, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered and finally, I think, it should always be remembered that to deny the subject a hearing should be the last resort of the court.”
33. Similarly, in the case of Tree Shade Motors Limited v D.T. Dobie and Company (K) Limited and Another [1998] eKLR) cited by learned counsel for the appellant it was held that inter alia that:
“…where a draft defence is tendered with the application to set aside the default judgment, the court is obliged to consider it to see if it raises a reasonable defence to the Plaintiff’s claim. If it does, the defendant should be given leave to enter and defend.”
34. I have considered the said draft defence. Learned counsel for the respondent submits that there is no reasonable defence raised by the 1 st appellant because it is a general denial that is evasive, inconsistent and contradictory, it is made in the alternative and it is a general traverse.
35. I am inclined to agree with learned counsel’s submission. The draft defence alleges that the plaintiff (respondent herein) was the author of her misfortune. This is in spite of the averments in the plaint the plaintiff was a fare paying passenger in motor vehicle registration number KCN 577W. This means the 1 st appellant gave no regard to the plaintiff’s averments in the plaint.
36. The 1 st appellant then pleads in the alternative that the accident was caused and/or contributed to by the negligence of the driver of motor vehicle registration number KCN 577W. The respondent’s case as pleaded in the plaint that this was a case of rear-end collision where the 1 st appellant’s lorry rammed into the rear of the other vehicle. In such a case, under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See the case of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR) .
37. Consequently, I find that the draft defence does not raise any triable issue.
38. The lackadaisical conduct of the 1 st appellant in this matter right from the time he was served with summons to enter appearance when he failed to do so, upon his arrest in execution and then released to start paying the decretal sum but failed to do so and even to attend court for the mention afterwards, his delay in filing the application to set aside and his failure to file submissions in this appeal means that even if given a chance to defend the suit, to which I have found he has no triable issue, leads to the conclusion that a lot of prejudice will be occasioned to the respondents. He appears to be more keen on delaying the conclusion of the case rather than having it determined on the merits. I therefore find that the respondent is likely to suffer more prejudice than the 1 st appellant is leave is granted for him to enter appearance and file defence out of time.
39. On the whole, I find that the interests of justice will be better served by having the case proceed to its logical conclusion on the trajectory of execution that it was before the 1 st appellant filed his application seeking to set aside the default judgment.
40. Consequently, having considered this appeal, I find the same has no merit, and it would be unfair and unjust to set aside the ruling of the trial court dismissing the 1 st applicant’s application dated 9 th February 2024 and any of the other applications in Kaloleni Magistrates Court Civil Case Nos E008 of 2022, E0010 and E013 all of 2022. The appeal herein and the appeals in Malindi High Court Civil Appeal Nos E057 of 2024, E058 of 2024, E059 of 2024 are hereby dismissed.
41. The 1 st respondent shall pay the costs of this appeal.
42. Orders accordingly.
Written, dated and signed this 13 th day of August 2025
ANDAYI W. F.
JUDGE
Delivered on the Virtual platform, Teams this 13 th day of August 2025 .
In the presence of:
N/A for the Appellants.
N/A for the Respondent.
Ummu: Court assistant
ANDAYI W. F.
JUDGE
malindi hC ca No. E057/202414/setting aside default judgment