1. In a judgment delivered on 13th June 2024, the Small Claims Court observed in paragraph 3 that:-
“While there was no appearance by the 1st Respondent, the 2nd Respondent in his response to the statement of claim argued a misjoinder, in the sense that he was not the owner of Tuktuk registration number KTWC 423N.”
2. The Court in its verdict at paragraph 10 of the judgment found that:-
“From the foregoing, it is the findings and verdict of the Court that both the 1st and 2nd Respondents are to be jointly and severally held liable for the accident in question. Consequently, judgment in the sum of Kes.305,880.00 against both Respondents is to be entered in favour of the Claimant.”
3. It is not in dispute that the Appellant was served with the statement of claim, witness statement and list of documents. The affidavit of service of Charles Mokaya Monari, a duly licensed process server, indicates that the Appellant was served on 19th April 2024 at 950 am at its office opposite Likoni Towers Building.
4. Warrants for the attachment of movable properties of the judgment debtors were subsequently issued on 22nd August 2024. This appears to have awoken the Appellant from its slumber, for through an application dated 26th August 2024, the Appellant sought, inter alia, to have the judgment and decree dated 13th June 2024 set aside and for the Court to grant it leave to file its defence out of time.
5. Upon hearing the application on merit, the Court below dismissed the application in a terse ruling dated 20th September 2024.
6. Being aggrieved by the decision of the Court below, the Appellant appealed to this Court. The appeal raises four grounds to wit:-
1. That the learned magistrate erred in law and fact by failing to set aside the judgment in default entered against the Appellant despite the weight of evidence;
2. That the learned trial magistrate erred in law and fact in denying the Appellant an opportunity to mount and ventilate its defence despite its finding that the Appellant has a reasonable defence which raises triable issues;
3. That the learned trial magistrate erred in law and fact in finding that setting aside a default judgment and allowing the Appellant to be heard on merit would amount to the Court rewriting its judgment; and
4. That the learned trial magistrate erred in law and fact by dismissing the Appellant’s application dated 26th August 2024, despite the weight of evidence and the reasons cited by the Appellant.
7. This is the first appeal. This Court Will therefore reevaluate the decision of the trial Court and satisfy itself on its propriety.
8. The appeal was canvassed by way of written submissions. The submissions of the Appellant are dated 19th February 2025. In the said submissions, it was urged that the failure to file a defence was inadvertent. The appellant urged that it had a strong defence which it ought to be allowed to ventilate. The Appellant stated that the 1st Respondent accepted in the court below that the Appellant was a financier and not the owner, and for that reason, the latter did not appear or file a defence. It was further submitted that the court below was wrong to find that it was functus officio. Lastly, the Appellant denied that the decision of the court below was on merit.
9. The submissions of the 1st Respondent are dated 4th March 2025. In the said submissions, it was urged that there was a regular judgment which ought to be disturbed. Counsel for the Respondent denied that there was a reasonable defence to the claim which the Respondent ought to be allowed to present in its defence on merit. This Court was thus urged to dismiss the appeal with costs.
10. There is no doubt a regular judgment in this matter. The Appellant does not dispute that it was served with the pleadings. No explanation is given for the failure to enter an appearance and to file a response to the statement of claim. What little, halfhearted explanation exists is that the 1st Respondent acquiesced to the possible defence of the Appellant, when it appeared to conceded that the Appellant was a financier in the documents filed in the court below. The appeal hinges on the alleged fact that the appellant was the financier and not the owner of the subject Tuk-tuk.
11. The conditions that the Court considers when determining whether or not to set aside a judgment were set out in the case of Abdalla Mohamed & another v Mbaraka Shoka [1990] KECA 49 (KLR) being:-
“Reverting now to the appellants’ first ground of appeal, the tests for the correct approach in an application to set aside a default judgment are; firstly whether there was a defence on merits; secondly, whether there would be any prejudice; and thirdly, what is the explanation for any delay – see the judgment of Kneller, JA (as he then was) in the case of Merama Nyangombe v Chacha Mwita, Court of Appeal, Civil Appeal No 79 of 1983.”
12. In Jomo Kenyatta University of Agriculture & Technology v Mussa Ezekiel Oebah [2014] KECA 143 (KLR) the Court of Appeal stated as follows:-
“13.The object of clothing the court with discretion to set aside judgment obtained ex parte has been pronounced in many decisions. Sample the following:
“To avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice...” See : Shah v Mbogo and Another [1967] EA. 116.”
13. In Patel v E.A. Cargo Handling Services [1974] EA 75, the Court of Appeal for Eastern Africa stated that:-
“There are no limits of restrictions on 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 condition o itself or fatter its wide discretion given to it by the Rules, the principle obviously is that unless and until the Court has pronounced judgment upon merits or be by consent it’s has power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any rule of procedure.”
14. I have considered this matter in light of the authorities. I am not convinced that there is a case for setting aside the decision of the Court below. In my view, the Appellant failed to act prudently despite being served, probably in the hope that the defence of the 2nd Respondent would be upheld. That kind of conduct would appear to this Court to be highly cynical and deliberate. There is therefore no reason for this Court to aid the appellant in its tardy conduct.
15. In the circumstances, I dismiss the appeal and order that each party bears its or his costs.
16. It is so ordered.
Dated and signed in Mombasa this 2nd day of May 2024. Delivered virtually through Microsoft TEAMS.
“While there was no appearance by the 1st Respondent, the 2nd Respondent in his response to the statement of claim argued a misjoinder, in the sense that he was not the owner of Tuktuk registration number KTWC 423N.”
2. The Court in its verdict at paragraph 10 of the judgment found that:-
“From the foregoing, it is the findings and verdict of the Court that both the 1st and 2nd Respondents are to be jointly and severally held liable for the accident in question. Consequently, judgment in the sum of Kes.305,880.00 against both Respondents is to be entered in favour of the Claimant.”
3. It is not in dispute that the Appellant was served with the statement of claim, witness statement and list of documents. The affidavit of service of Charles Mokaya Monari, a duly licensed process server, indicates that the Appellant was served on 19th April 2024 at 950 am at its office opposite Likoni Towers Building.
4. Warrants for the attachment of movable properties of the judgment debtors were subsequently issued on 22nd August 2024. This appears to have awoken the Appellant from its slumber, for through an application dated 26th August 2024, the Appellant sought, inter alia, to have the judgment and decree dated 13th June 2024 set aside and for the Court to grant it leave to file its defence out of time.
5. Upon hearing the application on merit, the Court below dismissed the application in a terse ruling dated 20th September 2024.
6. Being aggrieved by the decision of the Court below, the Appellant appealed to this Court. The appeal raises four grounds to wit:-
1. That the learned magistrate erred in law and fact by failing to set aside the judgment in default entered against the Appellant despite the weight of evidence;
2. That the learned trial magistrate erred in law and fact in denying the Appellant an opportunity to mount and ventilate its defence despite its finding that the Appellant has a reasonable defence which raises triable issues;
3. That the learned trial magistrate erred in law and fact in finding that setting aside a default judgment and allowing the Appellant to be heard on merit would amount to the Court rewriting its judgment; and
4. That the learned trial magistrate erred in law and fact by dismissing the Appellant’s application dated 26th August 2024, despite the weight of evidence and the reasons cited by the Appellant.
7. This is the first appeal. This Court Will therefore reevaluate the decision of the trial Court and satisfy itself on its propriety.
8. The appeal was canvassed by way of written submissions. The submissions of the Appellant are dated 19th February 2025. In the said submissions, it was urged that the failure to file a defence was inadvertent. The appellant urged that it had a strong defence which it ought to be allowed to ventilate. The Appellant stated that the 1st Respondent accepted in the court below that the Appellant was a financier and not the owner, and for that reason, the latter did not appear or file a defence. It was further submitted that the court below was wrong to find that it was functus officio. Lastly, the Appellant denied that the decision of the court below was on merit.
9. The submissions of the 1st Respondent are dated 4th March 2025. In the said submissions, it was urged that there was a regular judgment which ought to be disturbed. Counsel for the Respondent denied that there was a reasonable defence to the claim which the Respondent ought to be allowed to present in its defence on merit. This Court was thus urged to dismiss the appeal with costs.
10. There is no doubt a regular judgment in this matter. The Appellant does not dispute that it was served with the pleadings. No explanation is given for the failure to enter an appearance and to file a response to the statement of claim. What little, halfhearted explanation exists is that the 1st Respondent acquiesced to the possible defence of the Appellant, when it appeared to conceded that the Appellant was a financier in the documents filed in the court below. The appeal hinges on the alleged fact that the appellant was the financier and not the owner of the subject Tuk-tuk.
11. The conditions that the Court considers when determining whether or not to set aside a judgment were set out in the case of Abdalla Mohamed & another v Mbaraka Shoka [1990] KECA 49 (KLR) being:-
“Reverting now to the appellants’ first ground of appeal, the tests for the correct approach in an application to set aside a default judgment are; firstly whether there was a defence on merits; secondly, whether there would be any prejudice; and thirdly, what is the explanation for any delay – see the judgment of Kneller, JA (as he then was) in the case of Merama Nyangombe v Chacha Mwita, Court of Appeal, Civil Appeal No 79 of 1983.”
12. In Jomo Kenyatta University of Agriculture & Technology v Mussa Ezekiel Oebah [2014] KECA 143 (KLR) the Court of Appeal stated as follows:-
“13.The object of clothing the court with discretion to set aside judgment obtained ex parte has been pronounced in many decisions. Sample the following:
“To avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice...” See : Shah v Mbogo and Another [1967] EA. 116.”
13. In Patel v E.A. Cargo Handling Services [1974] EA 75, the Court of Appeal for Eastern Africa stated that:-
“There are no limits of restrictions on 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 condition o itself or fatter its wide discretion given to it by the Rules, the principle obviously is that unless and until the Court has pronounced judgment upon merits or be by consent it’s has power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any rule of procedure.”
14. I have considered this matter in light of the authorities. I am not convinced that there is a case for setting aside the decision of the Court below. In my view, the Appellant failed to act prudently despite being served, probably in the hope that the defence of the 2nd Respondent would be upheld. That kind of conduct would appear to this Court to be highly cynical and deliberate. There is therefore no reason for this Court to aid the appellant in its tardy conduct.
15. In the circumstances, I dismiss the appeal and order that each party bears its or his costs.
16. It is so ordered.
Dated and signed in Mombasa this 2nd day of May 2024. Delivered virtually through Microsoft TEAMS.