Diamond Trust Bank Limited v Muriithi & another (Civil Appeal E164 of 2025) [2026] KEHC 10318 (KLR) (3 July 2026) (Ruling)

Diamond Trust Bank Limited v Muriithi & another (Civil Appeal E164 of 2025) [2026] KEHC 10318 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 10318 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E164 of 2025 MW Mutuku, J July 3, 2026 Between Diamond Trust Bank Limited Appellant and Peter Mbaka Muriithi 1st Respondent Xploca Insurance Company Limited 2nd Respondent (Being an appeal from the Ruling and Orders of Hon. K. Sambu – (S.P.M) delivered on 7th June, 2023 in Kiambu Chief Magistrate’s Court Civil Case No. 526 of 2019) Ruling 1.Before this Court is the Memorandum of Appeal dated 14th October 2025 by which the Appellants sought the following orders:-(a)a) That the Ruling and court orders dated 7th June 2023 issued in Kiambu CMCC No. 526 of 2019 be set aside and replaced with an order allowing the appellant’s application dated 21st July 2022.(b)That the honorable court be pleased to set aside the ex parte Garnishee order absolute dated 10 th February 2022 and direct that the hearing of the garnishee application dated 29th January 2022 filed in Kiambu CMCC No. 526 of 2019.(c)That the costs of this appeal be awarded to the appellant. 2.The appeal was canvassed by way of written submissions. The appellant filed the written submissions dated 5th February 2025 whilst the Respondent relied upon their written submissions dated 17th February 2026. Background. 3.The 1st Respondent sought to execute his judgment obtained against the 2nd Respondent in Kiambu CMCC No. 526 of 2019. The 1st Respondent filed a garnishee application date 29th January 2020 seeking a garnishee ordered against the bank for a sum of Ksh 1,659,888.00 and obtained a garnishee order dated 31st January 2020. 4.The bank nor their advocates did not participate in the garnishee proceedings and as a result, the trial court issued a garnishee order nisi for Ksh 1,659,888.00 against the bank on 10th February 2020. 5.The order was communicated to the bank directly on 20th July 2022, which then informed its advocates on record. Subsequently, the advocates filed an application dated 21st July 2022 seeking to set aside the garnishee order absolute dated 10th February 2020 and have the garnishee application date 29th January 2020 heard de novo. 6.On 7th June 2023, the trial magistrate delivered a ruling, dismissing the application seeking to set aside. The court in dismissing the application held that the reasons given by the bank for failure to participate in the garnishee proceedings commenced vide the notice of motion application dated 29th January 2020 were not satisfactory and dismissed the banks application dated 21st July 2022 with costs. 7.The appellant being dissatisfied with the ruling and order of the learned magistrate has appealed the ruling on the grounds that:-i).That the learned trial magistrate failed to consider the Appellant’s advocates could not access emails during their restructure and were therefore unaware o the instructions to defend the garnishee application dated 19th January 2020.ii).That the learned trial magistrate erred in holding that the Appellant and /or is advocates indolent for failure to participate in the Garnishee proceedings commenced vide the garnishee application dated 19th January 2020 despite giving an excusable reason for the delay.iii).That the learned trial magistrate erred failed to consider the draft response annexed to the banks application dated 21st July 2022 and give reasons whether the same is arguable or not.iv).That the learned trial magistrate erred in fact and law in failing to set aside the absolute Garnishee order dated 10th February 2020 despite evidence of attachable funds in the Judgment Debtors account as at the date of service of the Garnishee order nisi.v).That the learned trial magistrate erred in holding the reasons for the appellant’s failure to participate in the garnishee proceedings commenced vide the garnishee application dated 29th January 2020 were insufficient. Analysis and Determination 8.I have considered the appeal before this court, the record of the proceedings before the Lower Court as well as the written submissions filed by both parties. 9.This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557(KLR) in which the Court of Appeal stated as follows:-“This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and 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 is 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 allowances in this respect. see Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v Brown [1970] E.A.L .As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide……” 10.In opposing the appeal, the respondents submitted that the appellants appeal is devoid of merit, is an afterthought, and calculated to obstruct the due execution of a lawful decree. That the learned magistrate properly exercised judicial discretion in dismissing the appellant’s application dated 21st July 2022 and there exists no basis for appellate interference. 11.I have considered the application before Court. It seeks that this Court’s orders of 7/6/2023 be reviewed and set aside. The main issue for determination is thus whether those orders ought to be set aside as prayed. 12.The law on setting aside of ex parte orders is found under Order 12, rule 7 of the Civil Procedure Rules, 2010 which provides thus: -“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 13.This provision is amplified by Order 51, rule 15 which provides that the Court may set aside an order made ex parte. In setting aside ex parte orders, the Court must be satisfied of one of two things, namely, either that the respondent was not properly served or that the respondent failed to appear in Court at the hearing due to sufficient cause. (See – Philip Ongom, Capt v Catherine Nyero Owota Civil Appeal No. 14 of 2001 [2003] UGSC 16 (20 March 2003)). 14.Mulla, The Code of Civil Procedure has illuminated the grounds for setting aside an ex parte decree and what constitutes sufficient cause for setting aside an ex parte order. Essentially, setting aside an ex parte order is a matter of the discretion of the court. In Esther Wamaitha Njihia & two others v Safaricom Ltd [2014] eKLR, the court held inter alia that;''The discretion is free and the main concern of the courts is to do justice to the parties before it (see Patel v E.A. Cargo Handling Services Ltd.) The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice (see Shah v Mbogo). The nature of the action should be considered, the defence if any should also be considered; and so should the question as to whether the plaintiff can reasonably be compensated by costs for any delay bearing in mind that to deny a litigant a hearing should be the last resort of a court. (See Sebei District Administration v Gasyali.) It also goes without saying that the reason for failure to attend should be considered." 15.It then follows that the decision whether or not to set aside an ex parte order is discretionary. The discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See Shah v Mbogo & Another [1967] EA 116. 16.The applicant’s main contention was that the Garnishee nisi proceedings application was served upon the bank directly. That during that period, the bank was going through restructuring and they were not able to access their emails. That immediately they were served with the orders, they instructed their advocate on record and they made the application to set aside, which was consequently dismissed. 17.This provision is amplified by Order 51, rule 15 which provides that the Court may set aside an order made ex parte. In setting aside ex parte orders, the Court must be satisfied of one of two things, namely, either that the Applicant was not properly served or that the Applicant failed to appear in Court at the hearing due to sufficient cause. 18.Having found that the appellant was properly served, the court has a duty to examine if they failed to appear at the hearing due to a sufficient cause. 19.In Esther Wamaitha Njihia & two others v Safaricom Ltd (2014) eKLR, the court held inter alia that;“The discretion is free and the main concern of the courts is to do justice to the parties before it (see Patel v E.A. Cargo Handling Services Ltd.) The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice (see Shah v Mbogo). The nature of the action should be considered, the defence if any should also be considered; and so should the question as to whether the plaintiff can reasonably be compensated by costs for any delay bearing in mind that to deny a litigant a hearing should be the last resort of a court. (See Sebei District Administration v Gasyali.) It also goes without saying that the reason for failure to attend should be considered." 20.It then follows that the decision whether or not to set aside an ex parte order is discretionary. The discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. See Shah v Mbogo & Another (1967) EA 116. 21.The applicant stated that they were not able to access their email during the structuring .the learned trial magistrate dii not tell why he did believe the explanation. I find that the learned magistrate, owing to the nature and volumes of bank business did not exercise his discretion judiciously in dismissing the application. In light of the foregoing analysis, this Court finds, with utmost respect, that the learned trial Magistrate, despite the fact that the delay was not inordinate, placed undue emphasis on the principle of finality in litigation and the expeditious disposal of cases at the expense of the overriding objective of the Civil Procedure Act, which is to ensure the just determination of disputes. 22.I find the appeal is merited and is allowed.Orders.i)The Ruling and court orders dated 7th June 2023 issued in Kiambu CMCC No. 526 of 2019 are hereby set aside and replaced with an order allowing the appellant’s application dated 21st July 2022.(b)That the ex parte Garnishee order absolute dated 10 th February 2022 is set aside and the court hereby directs that the hearing of the garnishee application dated 29 th January 2022 filed in Kiambu CMCC No. 526 of 2019 de novo.(c)Each party to bear its own costs. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM ON 3RD JULY 2026.MARTHA MUTUKU.JUDGE.In the presence of:-N/A for the Appellant.Mr. Njuguna for the Respondent.Court Assistant – Mr. Kibet.