https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10174

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION CORAM: F. MUGAMBI, J COMM APPEAL 386 OF 2024 NO. E BETWEEN COLLINCE OLUOCH OSEWE APPLICANT ................................ VERSUS SANDRA MUKHANA MWALA ……………………… RESPONDENT (An appeal from the Ruling at the CM’s Court at Nairobi in MCCOMMSU No. E500/2024 [Hon Cheloti] delivered on 18th December, 2024) JUDGMENT Introduction 1. This is an appeal against a decision in and by which the trial court dismissed the Appellant’s Notice of Motion Application dated 4th September 2024 seeking to set aside the interlocutory judgment entered against the Appellant, and to have the Statement of Defence and Counterclaim filed on 26th August 2024 admitted to the record and the suit set down for full trial. Aggrieved, the Appellant filed the HCCOMMA E386 OF 2024 JUDGMENT Page 1 Memorandum of Appeal dated 20th December 2024 now before this Court. 2. The appeal was canvassed by way of written submissions. I have considered the Appellant’s submissions and supplementary submissions in favour of the appeal as well as the Respondent submissions opposing the appeal. Background 3. It is not in dispute as borne by the record that summons to enter appearance were served upon the Appellant on 14th June 2024. The prescribed period for entering appearance being 15 days from service, appearance fell due on or before 29th June 2024. By dint of Order 7 Rule 1, the Statement of Defense and Counterclaim ought to have been filed within 14 days of entering appearance so that the same was due on or before 13th July 2024. The record however shows that the Memorandum of Appearance was filed on 10th July 2024, approximately 11 days out of time and the Statement of Defence and Counterclaim was filed on 26th August 2024, also approximately 33 days out of time. HCCOMMA E386 OF 2024 JUDGMENT Page 2 4. Important to note also is the uncontroverted submission that the Respondent filed a Request for Judgment on 8th July 2024. By this time, admittedly, there was no appearance and no defense on record. The said request for judgment was endorsed on the 4th September 2024, 9 days after the Statement of Defence and Counterclaim had been filed and placed on the court record. It is also the same day that the Appellant filed the Notice of Motion application dated 4th September 2024, seeking to set aside the interlocutory judgment and to have the suit proceed to full trial. The Respondent opposed the application by a Notice of Preliminary Objection dated 6th September 2024 and a Replying Affidavit of Kofuna Ogwire Lawi, Advocate, sworn the same day. 5. Both maintained that the Statement of Defence and Counterclaim contravened Order 2 Rule 16 of the Civil Procedure Rules for want of a signature. The Appellant responded with a Further Affidavit sworn on 10th October 2024, and both parties thereafter filed submissions. 6. By the impugned Ruling delivered on 13th December 2024, the trial court struck out the Notice of HCCOMMA E386 OF 2024 JUDGMENT Page 3 Preliminary Objection, holding that whether the pleadings contravened Order 2 Rule 16 was a mixed question of law and fact and therefore not a true preliminary objection within the threshold in Mukisa Biscuit Manufacturing Co Ltd V West End Distributors Ltd, [1969] EA 696, such that the objection was never determined on its merits. The trial court held that, because the Notice of Appointment of Advocates and the Statement of Defence and Counterclaim had been filed after the prescribed time and without leave of court, they were to be treated in law as though they had never been filed, and that the interlocutory judgment of 4th September 2024 was accordingly regular. 7. The Court further found that no reason had been advanced for the delay in entering appearance and filing the Defence, that in the absence of a draft Statement of Defence and Counterclaim exhibited to either the Supporting or the Further Affidavit, the application did not disclose triable issues and on that account the Court dismissed the Application with costs to the Respondent. It is that Ruling of 13th December 2024 that is impugned in the present appeal. HCCOMMA E386 OF 2024 JUDGMENT Page 4 The Appellant’s Case: 8. The Appellant’s case is that once he entered appearance and filed a Defence and Counterclaim, the suit ceased in law to be an undefended claim, and the jurisdiction to enter interlocutory/default judgment under Order 10 of the Civil Procedure Rules, which is only available where a defendant has failed to appear or failed to file a defence at all, was no longer available. He relied on the decision in James Kanyita Nderitu V Marios Philotas Ghika & Another, [2016] eKLR, to draw the distinction between a regular default judgment and an irregular judgment, which is liable to be set aside ex debito justitiae as of right, without inquiry into delay or triable issues, because it offends the audi alteram partem rule. The Appellant contends the present judgment falls in the latter category. 9. Second, and in the alternative, that even if the trial court considered the Defence and Counterclaim defective for want of a signature or for being out of time, the only lawful course was an application to strike out under Order 2 Rule 15 of the Civil Procedure Rules, a jurisdiction which the HCCOMMA E386 OF 2024 JUDGMENT Page 5 Appellant, citing D.T. Dobie & Company (Kenya) Ltd V Muchina, [1982] eKLR and Prafulla Enterprises Ltd V Norlake Investments Ltd, Kisumu HCCC No. 145 of 1997, submits must be exercised sparingly, cautiously, only in plain and obvious cases, and never without hearing the affected party. No such application was made, no ground under Order 2 Rule 15(1)(a)–(d) was identified, and the Appellant was never heard on the point. 10. Third, that the Appellant was condemned unheard in violation of the right to fair hearing under Article 50 of the Constitution and the audi alteram partem rule. He relied on the case of Stephen Maina Githiga & 5 Others V Kiru Tea Factory Company Ltd, Petition No. 13 of 2019 and Kinuthia V Judicial Service Commission, [2020] eKLR for the proposition that no notice to show cause was issued and no opportunity was given to explain the interval between service and the entry of appearance. 11. Fourth, on the applicable appellate test, the Appellant invokes Magunga General Stores V Pepco Distributors Limited, Civil Appeal No. 24 HCCOMMA E386 OF 2024 JUDGMENT Page 6 of 1986 and Mbogo & Another V Shah [1968] EA 93, for the proposition that an appellate court will interfere with a lower court’s exercise of discretion where that discretion was exercised on a misapprehension of fact, on wrong principles, or resulted in an unjust decision, all of which, it is submitted, occurred here. 12. On Order 10 Rule 4 specifically, the Appellant submits in its Supplementary Submissions that judgment on a liquidated demand may only issue on a formal request in Form No. 13 of Appendix A, that the record disclosed no such request, and that in any event the rule presupposes a complete default of appearance which did not exist once appearance was entered and a Defence and Counterclaim filed. The Respondent’s Case: 13. The Respondent identifies three issues for determination and that is; whether the judgment was regular, whether the Appellant should be granted leave and an opportunity to present its case and whether an unsigned and undated Defence is curable. HCCOMMA E386 OF 2024 JUDGMENT Page 7 14. On the regularity of the interlocutory judgment, the Respondent contends that the Appellant does not dispute service of summons on 14th June 2024, that the Memorandum of Appearance was filed outside the stipulated timelines and after the Request for Judgment had been made, and that no explanation was ever offered for the delay. On this basis, the Respondent submits that the interlocutory judgment was regularly entered following due process. The Respondent cites Nzoia Sugar Company Limited V Capital Insurance Brokers Limited, Civil Appeal No. 86 of 2009, and Kiruga V Kiruga, [1988] KLR 348 (applying Watt V Thomas, [1947] 1 All ER 582), for the proposition that an appellate court should be slow to disturb findings of fact made by a trial court. 15. On whether the Appellant should be granted leave to be heard, the Respondent invokes the overriding objective under Article 159(2)(b) of the Constitution and the principle that litigation must come to an end, submitting that the right to be heard is not absolute and may be limited under Articles 24 and 25 of the Constitution where, as here, a party has by its own conduct waived that HCCOMMA E386 OF 2024 JUDGMENT Page 8 right. The Respondent places reliance on the decision in R V Aga Khan Education Services ex parte Ali Sele & 20 Others, [2010] eKLR and Egal Mohamed Osman V Inspector General of Police & 3 others [2015] eKLR. 16. On the third issue, the Respondent submits that the Defence and Counterclaim dated 26th August 2024 was unsigned contrary to Order 2 Rule 16 of the Civil Procedure Rules, and that this is not a mere technicality curable by invocation of the oxygen principle or Article 159(2)(d) of the Constitution, but a substantive defect rendering the pleading a nullity. The Respondent urges this Court to be guided by Kiage JA in Nicholas Kiptoo Arap Korir Salat V IEBC & 6 Others, [2013] eKLR on the sanctity of rules and timelines. The Respondent prays that the appeal be dismissed with costs. Analysis and Determination 17. The current appeal turns substantially on the record and on questions of procedure and law. In such a case this Court is entitled to look at the record and form its own view without deferring unduly to the trial court. On the applicable threshold for HCCOMMA E386 OF 2024 JUDGMENT Page 9 interference with a discretionary decision, I am guided by the test articulated in Mbogo & Another V Shah, [1968] EA 93 and applied in Magunga General Stores V Pepco Distributors Limited, CA No. 24 of 1986 which is that an appellate court will not ordinarily interfere with a trial court’s exercise of discretion, but will do so where the trial court misdirected itself on the facts, applied wrong principles, or reached a decision that is plainly unjust. 18. The first issue for determination is whether the trial court was right to enter interlocutory judgement against the Appellants. The trial court did not deny that a Statement of Defence and Counterclaim was physically filed on 26th August 2024. Its finding, rather, was that the pleading, having been filed out of time and without leave, fell to be treated in law as though it had never been filed at all. 19. The trial court’s conclusion that the Statement of Defence and Counterclaim, filed out of time and without leave, was “as if never filed”, rested on authorities including Lazaro Kibebe V Ndege , Makau & Another, HCCC No. 1222 of 1999 HCCOMMA E386 OF 2024 JUDGMENT Page 10 Equator Bottlers Limited V Kenya Ports Authority & 2 Others, HCCC No. 191 of 2005 and Coastal Bottlers Ltd V Kenya Ports Authority & 2 Others [2009] eKLR. I note that each of these authorities concerned an amended pleading that has been filed without the leave of court required for amendment. I note that none of them concerned an original pleading filed after the period prescribed under the Civil Procedure Rules. 20. The consequences of such failure to enter appearance are well spelt out under Order 10 Rule 4 and so is the period within which such consequence falls upon a party. That specific provision requires that: (1) Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail so to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against the defendant or defendants for HCCOMMA E386 OF 2024 JUDGMENT Page 11 any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs. (2) Where the plaint makes a liquidated demand together with some other claim, and the defendant fails, or all the defendants fail, to appear as aforesaid, the Court shall, on request in Form No. 13 of Appendix A, enter judgment for the liquidated demand and interest thereon as provided by sub-rule (1) but the award of costs shall await judgment upon such other claim. 21. Order 10 Rule 10 extends the same consequence, with necessary modification, to a defendant who has failed to file a defence within the required time. HCCOMMA E386 OF 2024 JUDGMENT Page 12 22. The Appellant has cited the Court of Appeal decision in James Kanyita Nderitu V Marios Philotas Ghika & Another, [2016] eKLR for the proposition that the judgment here was irregular and liable to be set aside ex debito justitiae, as of right. For the avoidance of doubt, the Court of Appeal noted as follows “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 HCCOMMA E386 OF 2024 JUDGMENT Page 13 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 HCCOMMA E386 OF 2024 JUDGMENT Page 14 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.” 23. On a careful reading, this authority does not bear the weight the Appellant places on it. Indeed, it points the other way. The Court of Appeal drew the line between a regular and an irregular default judgment by reference to whether the defendant was duly served with summons. Where service is not in question but a defendant simply fails, for whatever reason, to enter appearance or file a defence in time, the resulting judgment is a regular default judgment, correctable only through the unfettered discretion conferred by Order 10 Rule 11, having regard to HCCOMMA E386 OF 2024 JUDGMENT Page 15 the reason for the default, the length of delay, whether the intended defence discloses triable issues, the prejudice to the parties, and the interests of justice. 24. It is only where the defendant was never served, or improperly served, that a judgment is irregular and liable to be set aside as of right, without inquiry into any of the foregoing. The Appellant does not dispute service on 14th June 2024. What is in issue is not service, but whether, having been served, the Appellant discharged its obligation to enter appearance and file a defence in time, precisely the scenario that Nderitu (supra) classifies as a regular default judgment. I do therefore agree with the trial court that the interlocutory judgment of 4th September 2024 was regularly entered, and find that the Appellant’s claim to an entitlement to have it set aside as of right cannot be sustained. 25. I have reviewed the decisions cited by the trial court on the effect of a late filing of a pleading without leave of court. I would, and with respect state that most of the authorities may be an imprecise fit, since they did not concern an original pleading filed after HCCOMMA E386 OF 2024 JUDGMENT Page 16 the period prescribed under the Civil Procedure Rules. That observation, however, does not assist the Appellant once it is appreciated that Order 10 Rules 4 and 10, correctly applied, independently and adequately support the very conclusion the trial court reached. That a defence and counterclaim filed well outside the prescribed period, without leave, does not operate to displace a plaintiff’s entitlement to interlocutory judgment already accrued, and does not by its bare presence on the file entitle the defendant to have that judgment set aside other than through the Order 10 Rule 11 discretion. 26. The Respondent additionally faulted the Statement of Defence and Counterclaim for bearing no date. I am prepared to assume the most generous position available to the Appellant on this narrow point. That an undated pleading which otherwise sets out the defendant’s case in full is the kind of formal irregularity that the oxygen principle, and Article 159(2)(d) of the Constitution, are designed to cure, and that this defect alone, standing on its own, might not have justified shutting the Appellant out. That concession, however, does no work for the Appellant once it is recalled that the absence of a HCCOMMA E386 OF 2024 JUDGMENT Page 17 date and the lateness of filing without leave are two entirely distinct infirmities. Whatever view is taken of the missing date, it does not touch, still less cure, the graver and dispositive difficulty already identified. 27. As to whether the Appellant was denied an opportunity to be heard, I am unable to accept the submission that he was condemned unheard. The Appellant was accorded a full and genuine opportunity to place its case before the trial court including through the application dated 4th September 2024 as well as in defense to the preliminary objection, all of which the trial court considered before the ruling of 13th December 2024. Having been served on 14th June 2024 and having entered appearance only on 10th July 2024 and filed its Defence and Counterclaim only on 26th August 2024, it fell upon the Appellant, squarely within the process it was afforded, to explain that delay. No cogent explanation was placed before the trial court for either the 11-day delay in entering appearance or the further, more substantial 33-day delay in filing the Defence and Counterclaim thereafter. The trial court found that no reason had been given, a finding HCCOMMA E386 OF 2024 JUDGMENT Page 18 that is borne by the record before me. I decline to disturb that finding. 28. Further, with respect to the draft Statement of Defense and Counterclaim, it is settled, and reaffirmed in Nderitu (supra) that an applicant seeking to set aside a default or interlocutory judgment must demonstrate, at least prima facie, that the intended defence discloses a triable issue. The trial court found that no draft Statement of Defence and Counterclaim was provided before it, such that the application did not disclose triable issues. I am inclined to agree that this was a material and, indeed, fatal omission. It was not enough for the Appellant to assert, in its application, that a Statement of Defence and Counterclaim existed somewhere on the court file and to ask that the suit proceed on that basis. 29. The Appellant bore the burden of placing before the trial court the actual content of the defence it wished to rely upon, whether by annexing it, quoting its material particulars, or otherwise particularizing it on affidavit, so that the trial court could assess, even provisionally, whether it disclosed a bona fide HCCOMMA E386 OF 2024 JUDGMENT Page 19 defence. That burden applies with equal force to the Counterclaim. The bare fact that a document styled as a Counterclaim was filed does not, without more, demonstrate what it claims, against whom, or on what basis, and cannot by itself compel a court to reopen a concluded judgment. 30. Before concluding I would add that I do consider that the Appellant’s conduct, viewed as a whole, is itself a further and independent reason weighing against the exercise of discretion in its favour. At no point, neither at the time the Appellant filed their Notice of Appointment of Advocates and Statement of Defence and Counterclaim out of time, nor subsequently in the application itself, did the Appellant seek the leave of the court for the late filing, or offer any explanation, however brief, for why it had fallen out of time. 31. The Notice of Motion application proceeded instead on the bare assertion that the Statement of Defence and Counterclaim had been filed and ought, for that reason alone, to be considered and the suit set down for trial, as though the mere act of filing, regardless of when or how it was done, entitled the Appellant to HCCOMMA E386 OF 2024 JUDGMENT Page 20 have the suit proceed on its own terms. That is not the posture of a litigant genuinely seeking the court’s indulgence for an acknowledged default. It is closer to a posture of entitlement, in which compliance with the Rules’ time limits is treated as optional and the court is expected to accommodate the default regardless. 32. A litigant in genuine default ordinarily says so, admits the lapse, and asks to be excused for it. It does not proceed as though the lapse were of no consequence and leave it to the other side, and the court, to raise the objection. The absence of any such candour, at any stage, from the original default, through the application, to this appeal, is telling, and reflects on the lack of good faith with which the application, and now this appeal, has been pursued. This conduct reinforces, rather than displaces, the conclusion already reached, which is that the trial court was entitled to decline to exercise its discretion in the Appellant’s favour. Disposition 33. For these reasons, I am satisfied that the trial court properly exercised its discretion under Order 10 HCCOMMA E386 OF 2024 JUDGMENT Page 21 Rule 11 of the Civil Procedure Rules in declining to set aside the interlocutory judgment of 4th September 2024, and that no misdirection meeting the threshold in Mbogo & Another V Shah, [1968] EA 93 has been demonstrated. Accordingly, the appeal is hereby dismissed with costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10 TH DAY OF JULY 2026. F. MUGAMBI JUDGE Delivered in presence of: Ogada for appellant Kofuna for respondent Court Assistants: Lillian & Gloria HCCOMMA E386 OF 2024 JUDGMENT Page 22