https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12495

Acceler Global Logistics & another v Surgipharm Limited (Civil Appeal 384 of 2025) [2026] KEHC 12495 (KLR) (27 July 2026) (Judgment) Neutral citation: [2026] KEHC 12495 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal 384 of 2025 PK Rotich, J July 27, 2026 Between Acceler Global Logistics 1st Appellant Brian Mutwiri 2nd Appellant and Surgipharm Limited Respondent (Being an appeal from the ruling of Hon.H.A.Okello (RM) delivered on 11th March, 2023 in Milimani CMCC No.E1840 of 2023) Judgment 1.In its plaint dated 26th April, 2 023 the respondent averred that it imported 1414 cartons (19 pallets) of Benylin Cough syrup and Vermox suspension valued at USD139,114.37 (CFR) from Johnson & Johnson (Pty) of South Africa under invoices No. 6000073579 and 6000073580 dated 28th March,2017.The respondent also averred its supplier tendered the package to Durban Port South Africa for shipment in container No. BMOU654471-8 under Bill of Lading No. MSCUEL091450 and the consignment arrived at the port of Mombasa on 13.4.17. Upon arrival, the package was transferred to Regional Logistics Centre Limited Container Freight Station (CFS) for custom clearance by Acceler Global Logistics Limited (1st appellant) to clear and forward the consignment to the respondent’s premises in Nairobi. 2.The Cargo Surveillance Unit (CSU) attended and inspected the package on 25th April 2017, the respondent averred, and reported nothing unusual. Thereafter, the appellant averred, the container was secured with seals no. OM125839 and 0269932 and loaded onto the 1st appellant’s motor vehicle registration No. KCJ 789M/ZF 5264 driven by the 2nd appellant for transportation. 3.On or about 28th April, 2017 when the aforesaid consignment was delivered to the plaintiff’s premises, the respondent stated, it realized that145 cartons of assorted Benylin syrup (2 pallets) with CFR value of USD13,292.64 were missing. The plaintiff had taken an insurance marine cover over risk of of such damage with Kenindia Assurance Company Limited under Marine Transit Insurance Policy claim No. P/104/06/0665/2017/03/1000781. 4.Pursuant to aforesaid Marine Cover, the aforesaid cover, the respondent averred, it presented claim No. C/104/0661/2017/000006/05/0 to Kenindia Assurance Company whilst on transit to the tune of 16,217,195.00 and the Insurance company compensated the respondent for:a.Adjusted loss - Ksh. 1,394,626.00b.Adjustors fees - Ksh. 80,388.00c.Investigation fees - Ksh. 26,160.00d.Copy of records - Ksh. 550.00Total - 1,501,724.00 5.In its plaint, the respondent, therefore, claimed special damages for the said sum on the basis that the loss and/or theft of 145 cartons (2 pellets) of assorted Benylin syrup was wholly occasioned by the negligence and or breach of contract by the aappellants’, their servants, employees and or agents of the appellants are wholly liable for the loss and that M/s Kenindia Assurance Ccompany Limited is entitled to recover the same under the doctrine of subrogation. 6.Interlocutory judgement was entered against the appellants on 13th May, 2024 after they failed to enter appearance and filed defence despite service of summons and the plaint. 7.The appellants, however, filed an application dated 25th October 2024 seeking to set aside the judgement entered. In the application the appellants admitted that, indeed, they were served with summons to enter appearance but they delayed in transmitting the same to their insurers. Their failure to enter appearance on time, the appellants averred, was innocent, inadvertent and unintended mistake on their part. The appellants further averred that the defendants/applicants have formidable draft defence against the plaintiffs claim that raises very triable issues and wish to be afforded an opportunity to be heard. The application by the appellants is supported by the affidavit of Regina Ireri a Legal Officer with M/s Heritage Company Limited the aappellants’ Insurer who annexed copy of their draft defence marked “Ex. 1”. 8.In response, the respondent filed a replying affidavit sworn by Faith Mutinda. a Recovery Officer at M/s Kenindia Assurance Company Limited. The deponent averred that the appellants’ application was in bad faith, frivolous, vexatious and intended to delay the respondent’s insurer enjoyment of the fruits of judgement entered by the trial court. 9.The respondent’s insurer Recovery Officer, further, stated that despite the appellants being properly served with summons to enter a response and pleadings, which they acknowledge, they had no intentions to enter appearance or file defence within the stipulated statutory period. The Recovery Officer also stated that the appellants’ application was made after unreasonable delay. 10.The trial magistrate in her ruling dated 11/3/2025 found default judgement entered against the appellants was regular. The learned magistrate also found that no plausible reasons were given for the appellants’ delay in entering appearance and filing defence. Further, the learned trial magistrate held that delay should prejudice other parties’ quest for justice. 11.Being dissatisfied with the ruling of the trial court, the appellant preferred the appeal. The appeal is based on 5 grounds which can be summarized as follows: -1.That the learned magistrate weighed the respondent’s case in isolation and precluded herself from assessing the prejudice and difficulties that would be visited upon the appellants by the default judgement or whether their defence raises triable issues.2.The learned trial magistrate erred in law and fact in failing to apply to the principles applicable in setting aside ex parte judgement while dismissing the application dated 25th October, 2025. 12.Order 10 Rule 11 of the Civil Procedure Rules stipulates that ex parte judgements in default of appearance or defence may be set aside on terms that are just. 13.The issue for determination in this matter is whether the trial magistrate fairly exercised her discretion in dismissing the appellants’ application to set aside the default judgement entered against them. In the case of James Kanyita Nderitu & Another vs. Merios Philotasa Ghika & Another (2016)eKLR the Court of Appeal set out criteria for exercising discretion in setting aside default judgement:“In a regular default judgement 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 judgement such defendant is entitled under order 10 rule 11 of the Civil Procedure rule, to move the court to set aside the default judgement and will take into account such factors as 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 judgement was entered; whether the intended defence raised 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 judgement, among others ………….” 14.In Shah vs. Mbogo (1967) EA 166 the court held:“Firstly, there are no limit or restrict on the judge discretion to set aside except that if the judge does vary the judgement, he does so on such terms as may be just. The main concern for the court is to do justice to the parties, and the court will not impose condition on itself to fetter the wide discretion given to it by the rules. Secondly, the discretion to set aside is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excisable mistake or error, but not to assist the person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice”. 15.The appellants herein admit they were served with summons to enter appearance and the plaint but they delayed in transmitting the same to their insurers to enter appearance on time. They also claim that the mistake was innocent, inadvertent and unintended. This court is not persuaded by the reasons given by the appellant. The appellants did not specify how the delay occurred. This court also notes that the appellant’s draft defence consists of mere denials and therefore, does not raise triable issues. This court, further, finds that the appellants were not keen to defend this matter and that their application was merely intended to deny respondent’s insurer fruits of the subject judgement herein. Justice delayed is justice denied. In total, this court finds that the trial magistrate exercised her discretion fairly and judiciously in declining to set aside the interlocutory default entered against the appellants. 16.The upshot of my findings above is that this appeal lacks merit and the same is dismissed with costs. DATED AND SIGNED AND DELIVERED ON LINE VIA MICROSOFT TEAMS THIS 27TH DAY OF JULY 2026.HON. P. K. ROTICHJUDGEIn the presence of:Ms. Ng’ang’a h/b for Ndunge for the Appellant – presentMs. Ng’ang’a: We pray for 30 days stay of execution to facilitate payment.Court: 30 days stay of execution granted.HON. P. K. ROTICHJUDGE