https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10408

Kamau v Kuria (Civil Appeal E015 of 2025) [2026] KEHC 10408 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10408 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E015 of 2025 KL Kandet, J July 10, 2026 Between Everlyne Wanjiru Kamau Appellant and Paul Macharia Kuria Respondent (Being an appeal from the ruling of Hon. B. J. Ofisi (SRM) delivered on 31st January 2025 in Limuru SPMCC No 279 of 2017) Judgment 1.The Appellant, Everlyne Wanjiru Kamau, being aggrieved by the Ruling of Hon. B. J. Ofisi (SRM) dated and delivered on 31st January 2025 in Limuru SPMCC 279 of 2017, filed a Memorandum of Appeal dated 13th February 2025 pursuant to Order 42 Rule 3 of the Civil Procedure Rules, Chapter 21 Laws of Kenya.She raises the following grounds of appeal:1.The Learned Trial Magistrate erred in law and fact by failing to analyse all the relevant evidence availed by the Appellant on the application.2.The Learned Trial Magistrate erred in law and fact by failing to consider the particular circumstances surrounding the application.3.The Learned Trial Magistrate erred in law and fact by failing to consider the pertinent issues raised by the Appellant in submissions.4.The Learned Trial Magistrate erred in law and fact by failing to appreciate the Appellant's contentions and arguments.5.The Learned Trial Magistrate erred in law and fact by failing to apply the correct legal principles in determining the matter.6.The Learned Trial Magistrate misdirected herself by considering erroneous facts.7.Consequently, the decision of the Learned Trial Magistrate constituted a miscarriage of justice. 2.By reason of the foregoing grounds, the Appellant prays for Orders that:a.The Appeal be allowed with costs.b.The ruling of the Learned Trial Magistrate delivered on 31st January 2025 be set aside and/or varied and/or quashed.c.The Honourable Court to deliver a fresh ruling on setting aside the interlocutory judgment rendered against the Appellant.d.This Honourable Court do adjudicate and determine this matter and enter a just determination in light of the evidence and submissions on record.e.In the alternative, this Honourable Court directs that the application be heard afresh in the subordinate court.f.The costs be awarded to the Appellant.g.Such further orders as this Honourable Court may deem fit. 3.The Respondent, instituted Limuru CMCC No. 279 of 2017 by filing a Plaint dated 30th November 2017 on 1st December 2017, seeking judgment against the Appellant for a sum of Kenya Shillings Four Hundred and Eighteen Thousand Five Hundred and Seventy (Kshs.418,570/-). The summons to enter appearance were duly issued and the Respondent's process server served them personally upon the Appellant on 8th December 2017.An Affidavit of Service was filed in court to that effect. 4.Following the lapse of fifteen (15) days from the date of service without the Appellant entering appearance or filing a Defence, the Respondent proceeded to request for judgment in default. The court entered and endorsed a request for Judgment dated 19th April 2018 on 20th April 2018, entering judgment against the Appellant. This was a liquidated claim under Order 10 Rule 4 of the Civil Procedure Rules. 5.The Respondent subsequently extracted the decree dated 2nd July 2018. Execution proceedings commenced in 2023 when the Respondent obtained a Notice to Show Cause and served the same upon the Appellant. 6.It was at this point, approximately six (6) years after the interlocutory judgment was entered, that the Appellant moved the Trial Court by Application dated 5th September 2024, seeking stay of execution and the setting aside of the judgment, pursuant to the provisions of Order 10 Rule 11 of the Civil Procedure Rules. The Respondent vehemently opposed the application. Parties filed their respective submissions and on 31st January 2025, the Learned Trial Magistrate, dismissed the Appellant's application. It is that Ruling that is the subject of the present Appeal. Appellant's Submissions 7.The Appellant, through Counsel on record proposed the issue for determination as to whether the Appeal should be allowed and the interlocutory judgment set aside. 8.The Appellant contended that the Trial Magistrate erred in holding that the application to set aside had not been filed in good time and that the reasons provided were insufficient. The Appellant argued that she was not a lazy litigant. She had filed a Statement of Defence and subsequently filed an application dated 22nd November 2021 to set aside the judgment, both of which were stamped by the court. The Appellant maintained that despite the application being placed on the file, it was never issued with directions nor given a hearing date, through no fault of hers. 9.The Appellant relied on Shah v Mbogo [1969] EA 116 for the proposition that the court's discretion to set aside an ex parte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, and not to assist persons who deliberately obstruct the course of justice. The Appellant submitted that her circumstances fell squarely within the former category. 10.The Appellant further relied on Winnie Wambui Kibinge & 2 Others v Match Electricals Limited, Civil Case No. 222 of 2010, for the proposition that it does not follow that because a mistake has been made, a party should suffer the penalty of not having the case heard on its merits. The court in that case further held that any delay resulting from setting aside a judgment must be weighed against the denial of an opportunity for the defendant to put forward its case on the merits, and that the principle of proportionality under the overriding objective demands choosing the lower rather than the higher risk of injustice. 11.The Appellant urged that dismissing the application to set aside, despite evidence of her proactive steps, amounted to condemning her unheard and constituted a miscarriage of justice. 12.The Appellant submitted that costs follow the event and prayed that the Appeal be allowed with costs. Respondent's Submissions 13.The Respondent, through his counsel, urged the Court to dismiss the Appeal. 14.The Respondent submitted that as the first appellate court, this Court is duty bound to rehear the case and make up its own mind, without disregarding but carefully weighing the ruling appealed from. Reliance was placed on Moiz Motor Limited & another v Muthoka & 2 others (Civil Appeal E079 of 2022) [2023] KEHC 26428, citing Coghlan v Cumberland [1898] 1 Ch 704. 15.The Respondent contended that the Appellant was duly and personally served with summons on 8th December 2017, as confirmed by the Affidavit of Service filed by the Process Server, one Aggrey Muhemberi Avumba. The Respondent submitted that the Appellant herself organized for the summons to be taken to her in studio, retained her copy, and further took the summons and pleadings to her insurer constituting clear acknowledgment of service. This was consistent with Order 5 Rule 8(1) of the Civil Procedure Rules as amended in 2020. 16.The Respondent submitted that having been properly served, the Appellant had a duty to file a Memorandum of Appearance and Defence within the time prescribed in the summons as required by Order 6 Rule 1 and Order 7 Rule 1 of the Civil Procedure Rules, 2010. The Appellant elected to sleep on her rights. The Respondent urged that no one, not even the Appellant, should be assisted by this Court to extricate herself from circumstances of her own creation. Reliance was placed on Francis Munyoki Kilonzo & Another v Vincent Mutua Mutiso [2013] eKLR. 17.The Respondent further submitted that the Appellant's application to set aside judgment was filed six (6) years after the interlocutory judgment was entered, an inordinate delay that would defeat the overriding objectives of expeditious and proportionate disposal of suits under Sections 1A and 1B of the Civil Procedure Act. 18.Regarding the Appellant's claim of having filed an application dated 22nd November 2021, the Respondent submitted that the court cannot on its own motion issue directions on an application not filed under a Certificate of Urgency. The absence of any evidence that the Appellant followed up to ensure the application was heard demonstrated a lack of diligence. The Respondent submitted it was the Appellant's duty to ensure that any application she filed was heard. 19.The Respondent relied on Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, Civil Application 307 of 2003 [2007] eKLR, for the principle that litigation must come to an end at a certain point regardless of what the parties think of the decision. The Respondent urged that the reasons advanced by the Appellant fall outside the principles established in Shah v Mbogo and that the Appeal should be dismissed with costs. Analysis And Determination 20.Having considered the Memorandum of Appeal, the parties' submissions, and the record before before the court, the following issues would arise for determination: Whether the Trial Magistrate properly exercised her discretion in declining to set aside the interlocutory judgment, and whether this Court should interfere with that exercise of discretion. 21.As the first appellate court, the court is enjoined to subject the proceedings to fresh and independent scrutiny and to make its own conclusions. This Court must reconsider the evidence, evaluate it independently, and draw its own conclusions, always bearing in mind that it has not had the advantage of seeing and hearing the witnesses. This position is well settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. 22.The power of the court to set aside an ex parte or default judgment is found in Order 10 Rule 11 of the Civil Procedure Rules, which provides that the court may set aside or vary judgment given ex parte on such terms as may be just. This is a discretionary power, and courts have developed principles to guide its exercise. 23.The locus classicus is Shah v Mbogo & Another [1969] EA 116, where it was stated that the discretion to set aside 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 has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. 24.In CMC Holdings Limited v Nzioki [2004] KLR 173, the Court of Appeal clarified that in an application to set aside an ex parte judgment, the court must consider not only the reasons why the defence was not filed or why the defendant failed to appear, but also whether the applicant has a reasonable defence raising triable issues. 25.In Winnie Wambui Kibinge & 2 Others v Match Electricals Limited, Civil Case No. 222 of 2010, Odunga J. (as he then was) held that the discretion to set aside is unfettered, and that blunders will continue to be made from time to time. It does not follow that because a mistake has been made a party should suffer the penalty of not having the case heard on its merits. The court further stated that, in considering whether to set aside, the Court must weigh any delay against the denial of an opportunity to put forward a defence on the merits, applying the principle of proportionality under the overriding objective. 26.The overriding objective under Sections 1A and 1B of the Civil Procedure Act requires the Court to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. As the Court of Appeal held in Stephen Boro Gitiha v Family Finance Building Society & 3 Others, Civil Application No. Nai 263 of 2009, the overriding objective overshadows all technicalities and whatever is in conflict with it must give way. 27.The Respondent has placed on record an Affidavit of Service by the Process Server, Aggrey Muhemberi Avumba confirming that the Appellant was personally served with the summons on 8th December 2017. The affidavit discloses that the Appellant personally organized for the summons to be taken to her studio, retained her copy, and took the summons to her insurer. This constitutes clear and unambiguous personal service within the meaning of Order 5 Rule 8(1) of the Civil Procedure Rules as amended in 2020. 28.The Appellant has not adduced any evidence to the contrary. The judgment was therefore not irregular, and the question of setting it aside as of right under the principles in Remco Limited v Mistry Jadva Parbat & Co. Ltd & 2 Others [2002] 1 EA 233 does not arise. The setting aside, if any, would be in the exercise of the court's discretion. 29.The Appellant's primary contention is twofold: first, that she filed an Application dated 22nd November 2021 to set aside the judgment, which was placed on the court file but never given directions; and second, that she was not a lazy litigant and had at all times taken steps to defend herself. 30.This Court accepts that in principle, where a party files an application that is overlooked by the court machinery, the resulting delay ought not to be held entirely against the Applicant. Courts have acknowledged that registries are not infallible. However, two difficulties arise with the Appellant's position. 31.First, while the Appellant avers that the 2021 application was filed, no evidence has been placed before this Court showing that the Appellant ever took any steps to follow up on that application, ensure it was set down for hearing, or bring it to the attention of the court. The Respondent correctly submits that litigants bear a duty to ensure that applications they file are heard. It is not sufficient to merely file an application and wait. Order 6 Rule 1 of the Civil Procedure Rules makes clear that upon service of summons, a defendant is required to enter appearance within the prescribed period. The same diligence is expected of a party who files an interlocutory application. As the Respondent's submissions note, the court cannot, on its own motion, issue directions on an unfiled or non-urgent application. 32.Second, and more significantly, the Appellant took no action from 2018, when judgment was entered, until 2023 when execution proceedings were commenced by the Respondent, a period of approximately five years. Even taking the 2021 application at its highest, it was filed some three years after judgment was entered. Thereafter, the Appellant remained passive for at least two further years until execution proceedings jolted her into action. The application filed in September 2024 was therefore made approximately six years after the judgment. 33.In Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2007] eKLR, Bosire JA underscored the principle of finality of litigation as a doctrine rooted in public interest. Litigation must come to an end at a certain point. The Court of Appeal has consistently held that this principle must be balanced against justice, but that where delay is inordinate and unexplained, the balance tips against setting aside. 34.In this case, the delay of six years is neither trivial nor adequately explained. The Appellant was aware of the suit from the outset. She received the summons and took them to her insurer. She cannot claim ignorance of the judgment or of the obligation to defend herself. Her inaction after service and after entry of judgment is not the kind of excusable mistake or inadvertence contemplated in Shah v Mbogo. 35.Even where delay is present, courts consider whether there is a plausible defence on the merits. In CMC Holdings v Nzioki and Winnie Wambui Kibinge, the courts emphasized that setting aside is more readily granted where the defendant raises triable issues. However, the Appellant has not placed before this Court a draft defence or any particulars of a substantive defence to the Respondent's claim for Kshs.418,570/-. In the absence of a defence on the merits, the case for setting aside is further weakened. 36.The Trial Magistrate held that the Appellant had not filed the application to set aside in good time and that the reasons provided were insufficient. Having re evaluated the record independently, this Court agrees with that conclusion. The inordinate and largely unexplained delay of approximately six years, coupled with the absence of a credible defence on the merits and the failure to demonstrate that all procedural steps were actively pursued, places the Appellant outside the remedial scope of Order 10 Rule 37.An appellate court will not interfere with the exercise of discretion by a trial court unless it is shown that the trial court applied wrong principles, took into account irrelevant matters, ignored relevant matters, or arrived at a decision that is plainly wrong. None of these failings has been demonstrated in this case. The Trial Magistrate's Ruling is consistent with the applicable legal principles.Dispositiona.The Ruling of the learned trial Magistrate delivered on 31st January 2025 is hereby upheld.b.This appeal if found to be lacking in merit and the same is hereby dismiss with costs to the Respondent.c.It is so ordered DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026, VIRTUALLY, THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Ms. Otieno For Nyatta For The AppellantOgweno For The RespondentCourt Assistant: Jael Nosim