REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
MOMBASA LAW COURTS
HCCSCA E007 OF 2025
YUSUF HASSAN MUBWANA ............................ APPELLANT/APPLICANT
VERSUS
RIESTA GENERAL MERCHANT LIMITED ............... RESPONDENT
RULING
1. This ruling determines the Appellant/Applicant’s Notice of Motion dated 13th October 2025 wherein he seeks, inter alia:
(a) extension of time to file and admission of an appeal out of time;
(b) stay of execution of the default judgment and decree issued in Mombasa Small Claims Court Case No. E522 of 2025 pending determination of the appeal;
(c) setting aside of the default judgment entered on 2nd July 2025 (and reinstated on 15th September 2025); and
(d) costs of the application.
2. The application is supported by affidavits sworn by the Appellant on 13th October 2025 and a Supplementary Affidavit sworn on 24th October 2025. The Respondent opposed the application by way of a Replying Affidavit sworn on 24th October 2025 and filed written submissions.
Background and procedural history
3. The Respondent commenced proceedings in the Small Claims Court (E522 of 2025) claiming KES 992,983/= for alleged breach of contract. An interlocutory default judgment was entered on 2nd July 2025 following service and the Appellant’s failure to file a defence.
4. The Appellant applied to set aside that interlocutory judgment on 8th August 2025. The Small Claims Court, by ruling dated 28th August 2025, conditionally set aside the interlocutory judgment on terms that the Appellant file his defence within seven (7) days and pay throw-away costs of KES 15,000/= before the next hearing; failure to comply would result in reinstatement of the default judgment.
5. The Appellant filed a response but did not pay the ordered KES 15,000/=. On 15th September 2025 the court reinstated the default judgment in accordance with its prior order. Execution followed and a Notice to Show Cause dated 1st October 2025 was issued. On 13th October 2025 the Appellant filed, in the Small Claims Court, an application seeking to pay the decretal sum by installments. On the same date he filed the present application in this Court and a draft Memorandum of Appeal dated 13th October 2025.
Issues for determination
6. The key issues to be determined are:
(i) whether the present application is competent and whether the Appellant has shown sufficient cause for extension of time and admission of the appeal out of time;
(ii) whether the Appellant is entitled to stay of execution pending determination of the intended appeal;
(iii) whether the default judgment and consequential proceedings should be set aside; and
(iv) whether the application is an abuse of process meriting dismissal.
Submissions
7. The Appellant contends he was denied a fair hearing, that there is no enforceable contract between the parties, that he filed a defence raising triable issues, and that he is willing to deposit KES 100,000/= as security pending appeal. He further avers the Small Claims Court refused him opportunity to pay the KES 15,000/= ordered as throw-away costs and asserts the judgment was irregular.
8. The Respondent contends the proceedings in the Small Claims Court were regular. It relies on the 28th August 2025 ruling which set aside the interlocutory judgment on specified conditions; the Appellant failed to comply with those conditions, resulting in reinstatement. The Respondent further argues the Appellant, by seeking installment terms and negotiating payment, has effectively acknowledged the debt and is estopped from denying the contract. It submits the application is an afterthought, an abuse of process and devoid of arguable merit, and that the offered security is inadequate against the decretal sum.
Analysis
9. The court is guided by the need to preserve finality of litigation and to prevent parties from using procedural applications to evade clear orders. The chronology is material: the interlocutory judgment was conditionally set aside by the Small Claims Court on 28th August 2025 subject to compliance with specified terms. The Appellant accepted the conditional order, was given time to comply, but failed to pay the ordered throw-away costs by the hearing date. The reinstatement of the default judgment on 15th September 2025 was therefore the direct consequence of the Appellant’s non-compliance with the court’s own order. Where an applicant fails to comply with conditions imposed by a court in order to obtain relief, that non-compliance is a relevant factor in assessing whether relief should subsequently be granted.
10. The Appellant’s remedy, if dissatisfied with the 28th August 2025 ruling, was to appeal that ruling within the statutory time frame. Having not done so, the present application is, to the extent it seeks to collaterally attack that ruling or its consequences, inappropriate. Allowing relitigation would undermine the finality of judgments and encourage multiplicity of proceedings.
11. On the merits of extension of time and admission of the appeal out of time: extension requires sufficient cause, which includes explanation for delay, diligence and an arguable appeal. The draft Memorandum of Appeal filed raises largely the same complaints of procedural irregularity and denial of hearing which were addressed by the Small Claims Court when it granted conditional relief and afforded the Appellant an opportunity to comply. The affidavit evidence before this Court does not demonstrate a credible explanation for the delay nor does it establish prima facie prospects of success sufficiently strong to outweigh the prejudice to the Respondent.
12. On stay of execution: the Appellant offers to deposit KES 100,000/= against a decretal sum approaching KES 1,000,000/=. This is inadequate to protect the Respondent’s interests. Additionally, the Appellant’s application for installment payments remains pending in the Small Claims Court — the appropriate forum to address proposals for payment and any interlocutory relief affecting execution. There is no persuasive reason to intervene and stay execution in the circumstances.
13. The Appellant’s conduct — failing to comply with the conditional order, subsequently negotiating payment and applying for installments, and filing multiple applications demonstrates a pattern of attempts to delay enforcement rather than to progress substantive resolution. The court must be cautious in enabling abuse of process.
Decision and orders
14. For the foregoing reasons, I find the Appellant has not shown sufficient cause to warrant:
(a) extension of time to file the appeal or admission of the appeal out of time;
(b) stay of execution of the default judgment pending the intended appeal; or
(c) setting aside of the default judgment and consequential orders.
15. Accordingly, the Notice of Motion dated 13th October 2025 is dismissed with costs to the Respondent.
16. The interim orders are hereby vacated
DATED, SIGNED AND DELIVERED at Mombasa this _11 th __ day of ___February_______ 2025.
.................................................
JUDGE OF THE HIGH COURT
WENDY KAGENDO MICHENI
in the presence of ;
FOR THE APPLICANT
FOR THE RESPONDENT
COURT ASSISTANT
BEBORA MWAI
IN THE HIGH COURT OF KENYA AT MOMBASA
MOMBASA LAW COURTS
HCCSCA E007 OF 2025
YUSUF HASSAN MUBWANA ............................ APPELLANT/APPLICANT
VERSUS
RIESTA GENERAL MERCHANT LIMITED ............... RESPONDENT
RULING
1. This ruling determines the Appellant/Applicant’s Notice of Motion dated 13th October 2025 wherein he seeks, inter alia:
(a) extension of time to file and admission of an appeal out of time;
(b) stay of execution of the default judgment and decree issued in Mombasa Small Claims Court Case No. E522 of 2025 pending determination of the appeal;
(c) setting aside of the default judgment entered on 2nd July 2025 (and reinstated on 15th September 2025); and
(d) costs of the application.
2. The application is supported by affidavits sworn by the Appellant on 13th October 2025 and a Supplementary Affidavit sworn on 24th October 2025. The Respondent opposed the application by way of a Replying Affidavit sworn on 24th October 2025 and filed written submissions.
Background and procedural history
3. The Respondent commenced proceedings in the Small Claims Court (E522 of 2025) claiming KES 992,983/= for alleged breach of contract. An interlocutory default judgment was entered on 2nd July 2025 following service and the Appellant’s failure to file a defence.
4. The Appellant applied to set aside that interlocutory judgment on 8th August 2025. The Small Claims Court, by ruling dated 28th August 2025, conditionally set aside the interlocutory judgment on terms that the Appellant file his defence within seven (7) days and pay throw-away costs of KES 15,000/= before the next hearing; failure to comply would result in reinstatement of the default judgment.
5. The Appellant filed a response but did not pay the ordered KES 15,000/=. On 15th September 2025 the court reinstated the default judgment in accordance with its prior order. Execution followed and a Notice to Show Cause dated 1st October 2025 was issued. On 13th October 2025 the Appellant filed, in the Small Claims Court, an application seeking to pay the decretal sum by installments. On the same date he filed the present application in this Court and a draft Memorandum of Appeal dated 13th October 2025.
Issues for determination
6. The key issues to be determined are:
(i) whether the present application is competent and whether the Appellant has shown sufficient cause for extension of time and admission of the appeal out of time;
(ii) whether the Appellant is entitled to stay of execution pending determination of the intended appeal;
(iii) whether the default judgment and consequential proceedings should be set aside; and
(iv) whether the application is an abuse of process meriting dismissal.
Submissions
7. The Appellant contends he was denied a fair hearing, that there is no enforceable contract between the parties, that he filed a defence raising triable issues, and that he is willing to deposit KES 100,000/= as security pending appeal. He further avers the Small Claims Court refused him opportunity to pay the KES 15,000/= ordered as throw-away costs and asserts the judgment was irregular.
8. The Respondent contends the proceedings in the Small Claims Court were regular. It relies on the 28th August 2025 ruling which set aside the interlocutory judgment on specified conditions; the Appellant failed to comply with those conditions, resulting in reinstatement. The Respondent further argues the Appellant, by seeking installment terms and negotiating payment, has effectively acknowledged the debt and is estopped from denying the contract. It submits the application is an afterthought, an abuse of process and devoid of arguable merit, and that the offered security is inadequate against the decretal sum.
Analysis
9. The court is guided by the need to preserve finality of litigation and to prevent parties from using procedural applications to evade clear orders. The chronology is material: the interlocutory judgment was conditionally set aside by the Small Claims Court on 28th August 2025 subject to compliance with specified terms. The Appellant accepted the conditional order, was given time to comply, but failed to pay the ordered throw-away costs by the hearing date. The reinstatement of the default judgment on 15th September 2025 was therefore the direct consequence of the Appellant’s non-compliance with the court’s own order. Where an applicant fails to comply with conditions imposed by a court in order to obtain relief, that non-compliance is a relevant factor in assessing whether relief should subsequently be granted.
10. The Appellant’s remedy, if dissatisfied with the 28th August 2025 ruling, was to appeal that ruling within the statutory time frame. Having not done so, the present application is, to the extent it seeks to collaterally attack that ruling or its consequences, inappropriate. Allowing relitigation would undermine the finality of judgments and encourage multiplicity of proceedings.
11. On the merits of extension of time and admission of the appeal out of time: extension requires sufficient cause, which includes explanation for delay, diligence and an arguable appeal. The draft Memorandum of Appeal filed raises largely the same complaints of procedural irregularity and denial of hearing which were addressed by the Small Claims Court when it granted conditional relief and afforded the Appellant an opportunity to comply. The affidavit evidence before this Court does not demonstrate a credible explanation for the delay nor does it establish prima facie prospects of success sufficiently strong to outweigh the prejudice to the Respondent.
12. On stay of execution: the Appellant offers to deposit KES 100,000/= against a decretal sum approaching KES 1,000,000/=. This is inadequate to protect the Respondent’s interests. Additionally, the Appellant’s application for installment payments remains pending in the Small Claims Court — the appropriate forum to address proposals for payment and any interlocutory relief affecting execution. There is no persuasive reason to intervene and stay execution in the circumstances.
13. The Appellant’s conduct — failing to comply with the conditional order, subsequently negotiating payment and applying for installments, and filing multiple applications demonstrates a pattern of attempts to delay enforcement rather than to progress substantive resolution. The court must be cautious in enabling abuse of process.
Decision and orders
14. For the foregoing reasons, I find the Appellant has not shown sufficient cause to warrant:
(a) extension of time to file the appeal or admission of the appeal out of time;
(b) stay of execution of the default judgment pending the intended appeal; or
(c) setting aside of the default judgment and consequential orders.
15. Accordingly, the Notice of Motion dated 13th October 2025 is dismissed with costs to the Respondent.
16. The interim orders are hereby vacated
DATED, SIGNED AND DELIVERED at Mombasa this _11 th __ day of ___February_______ 2025.
.................................................
JUDGE OF THE HIGH COURT
WENDY KAGENDO MICHENI
in the presence of ;
FOR THE APPLICANT
FOR THE RESPONDENT
COURT ASSISTANT
BEBORA MWAI