https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7078

REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CIVIL APPEAL NO. E007 OF 2024 FRANCIS MAINA GIKONYO..........................................APPEALANT # VERSUS- DAVID MAKALI MWANIKI..........................................RESPONDENT **JUDGEMENT** 1. The Appellant vide a Memorandum of Appeal dated the 15th January, 2024 has raised the following grounds of appeal THAT:- 1. The Learned Trial Magistrate erred in law and in fact in failing to correctly apply the principles and tests for the grant of an application to set aside the ex-parte Interlocutory Default Judgement entered therein and grant the Appellant leave to defend the suit on merits. 2. The Learned Trial Magistrate erred in law and fact in failing to consider and find that the Appellant had a claim that raises triable issues. 3. The Learned Magistrate erred in law and in fact in failing to consider and find that the Respondent would not be prejudiced in any way by not dismissing the suit without being heard on merits. 4. The Learned Trial Magistrate erred in law and in fact in failing to consider the explanation for the delay in filing the suit offered by the Appellant. The sole reason being that the Insurer of the Appellant was still negotiating the claim with belief that the same would result to an amicable settlement. 2. The Appellant seeks inter-alia, orders that this Honourable Court be pleased to set aside the ruling delivered on the 21st December, 2023 by Hon. M Thibaru (Adjudicator) dismissing the Appellant’s application dated 15th November 2023 that sought to set aside the *exparte* interlocutory default judgement in SCCC No. ER084 of 2023 at the Small Claims Court in Machakos. 3. The appeal was opposed by the Respondent through a Replying Affidavit sworn by **Peter Wanjue (Mr),** Advocate whose firm is on record for the Respondent and the court process server one **James Omujeshi** who effected service of the Summons to Enter Appearance upon the Appellant. Both Affidavits were sworn on the 18th May 2023 and filed in court on the 19th May 2023. 4. The appeal was canvassed through written submissions. 5. The Appellant submitted that it is the rule of natural justice that no one should be condemned unheard. The suit before the trial court was heard ex-parte, the Appellant filed a Response to the Statement of Claim that raised triable issues. It was submitted that the Appellant has met applicable conditions for the Appeal to be allowed. The Appellant has the right to be heard on merits. Reliance was placed on the case of **Mbogo vs Shah (1968) EA**, 6. The Respondent submitted that he had demonstrated through his replying affidavit that the lower court decision made by the Lower Court was justified on the following grounds:- 7. The learned Trial Magistrate did analyse and consider the respondent's evidence presented before the Honourable court while making her decision hence it cannot be accused of having ignored or failed to consider the principles and tests in granting the aforesaid orders. 8. The learned Trial Magistrate did consider the explanation for the delay in filling the suit as offered by the Appellant which was that there were negotiating for an out of court settlement, My Lord the reasons given lacks merits because nothing prevented the Appellant from filling their response to the statement of claim and or memorandum of appearance as soon as they realized that the matter had been listed for hearing and judgement was due to be delivered. 9. For these reasons, the Respondent submitted that the appeal lacks merit and urged this honourable court to dismiss the Appeal with costs. **Analysis and determination** 1. This being an appeal from the Small Claims Court, the jurisdiction of the Court is circumscribed in Section 38 of the [Small Claims Court Act](https://new.kenyalaw.org/akn/ke/act/2016/2). Section 38 of the [Small Claims Court Act](https://new.kenyalaw.org/akn/ke/act/2016/2) provides as follows: *1*. *A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law.* *2. An appeal from any decision or order referred to in sub section (1) shall be final.* 1. The above provision means that this Court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this Court is essentially limited to points of law. 2. In addressing a point of law and point of fact, in the case of **J N & 5 Others -vs- Board of Management, St. G School Nairobi & Another [2017] eKLR,** Justice Mativo stated thus: *“In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.”* 1. I have carefully read and considered the original record and supplementary records of appeal, the grounds of appeal and rival submissions by the parties. 2. Section 43 of the [Small Claims Court Act](https://new.kenyalaw.org/akn/ke/act/2016/2) provide for setting aside of Court orders. It provides that:- *“The Court may on the application of any Party to the proceedings set aside any of its orders and make such orders as it thinks just."* 13. Rule 11 of the Small Claims Court Rules provides that the Small Claims Court has discretion to set aside a default judgement. 1. Rule 11(4) of the Small Claims Rules sets out the grounds for setting aside an interlocutory judgment. It provides:- *“The Court may set aside a default judgment or any consequential orders given under this rule on the written request of any party that is aggrieved by the decree or order if the Court is satisfied, on evidence given by the applicant, and on hearing the other parties to the proceeding, that:-* 1. ***the default was inadvertent****;* 2. ***the applicant has a valid defence with a probability of success; or*** 3. ***there are sufficient grounds to warrant setting aside the default judgment, decree or order.”*** 4. Upon reviewing the Memorandum of Appeal and the grounds therein, it is evident that the grounds of appeal are framed to allege errors in law and in fact as well. This Court will refrain from addressing factual issues and will confine its analysis strictly to matters of law. This court will therefore proceed to determine whether the Learned Adjudicator was right in dismissing the Appellant’s application seeking to set aside default judgement pursuant to the provisions of Section 43, Rule 11(4) of the Act. 5. In answering this question, the first issue for determination is whether the judgement in question is regular or an irregular one. 1. It is now well settled from numerous precedents that a distinction exists between a default judgment that is regularly entered and one which is irregularly entered. 2. In an irregular judgment, the judgment will 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 justiciae*, 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. In addition, the court will not venture into considerations of whether the intended defence raises triable issues or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See **Onyango Oloo v Attorney General [1986 – 1989] EA 456*).”*** # In **James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR** the Court said, *“Where judgment is entered against a defendant who has not been served or properly served, such judgment is irregular and must be set aside ex debito justitiae.”* # In**Agigreen Consulting Corp Ltd v National Irrigation Board [2020] eKLR,** the Court stated thus; *“A default judgment founded on defective service is irregular and the court is entitled to set it aside as of right.”* 1. As regards improper service as alleged by the Appellant, the Appellant has not denied service of Summons and has attempted to dispute when he was duly informed of the proceedings. However, it is imperative to note that the Respondent has provided uncontroverted evidence of service, including filing Affidavits of Service by the process server one **James Omujeshi**. Any claims made by the Appellant suggesting inability to receive notices or documents lack corroboration and must be disregarded. It is within the expectations of reasonable diligence that a party should maintain awareness of court proceedings, especially those directly involving their interests. The Record of Appeal includes an Affidavit of Service dated 18th May 2023 sworn by the said James Omujeshi who states that he effected personal service on the Appellant. Interlocutory judgment was entered on 7th August 2023. Further, the record also contains a copy of a demand letter dated 20th September, 2022 that was sent to the Appellant's insurer First Assurance Company Ltd who were also served with a Notice of intention to sue dated 18th November 2022. 2. It is therefore clear to this Court that both the Appellant and his insurer were aware of the suit. The Appellant was served with the summons but has not explained why he did not enter appearance and or file his defence in due time. 3. The Respondent has also attached email correspondences between the firm of Kariah & Company Advocate and the Applicant’s representative **Mr. Victor Collins Kiminja** notifying him of the entry of judgement on the 21st of August 2023. 4. This court has keenly perused the record and agrees with the Trial Magistrate that the Appellant did not file or attach any Response to Statement of Claim and or a Memorandum of Appearance in their application to set aside the interlocutory judgment and so there was no defence for the trial court to look at to determine whether there was a triable issue raised. The Appellant has attempted to introduce a draft Response to the Statement of Claim through the Supplementary Index dated 11th September 2023. 5. It was incumbent upon the Appellant to avail before the trial court proof of the purported ongoing negotiations and not for him to assert that the Learned Trial Magistrate could have courteously requested to be supplied with a copy of the same. Therefore, the Appellant has not convincingly explained to this court what really prevented it from filling their response within the stipulated time. 6. On the above analysis, this court finds that the learned Trial Magistrate did analyse and consider the Respondent's evidence presented before the court while making her decision hence she cannot be accused of having ignored or failed to consider the principles and tests in granting the aforesaid orders. The learned Trial Magistrate did also consider the explanation for the delay in filling the suit as offered by the Appellant which was that there were negotiating for an out of court settlement. The Trial Magistrate found the reasons given to be lacking in merit because nothing prevented the Appellant from filling their response to the Statement of Claim and or Memorandum of Appearance as soon as they realized that the matter had been listed for hearing and judgement was due to be delivered. 7. In addition, this court has further observed that there is a ruling delivered on 13th March, 2024 in this appeal by the Learned Judge Francis Rayola Olel whereby he ordered the Appellant to deposit the entire decretal amount within 45 days from the date of the ruling and in default the application for stay of execution pending appeal shall be deemed to have been dismissed with costs and the Respondent would be at liberty to execute. There is nothing on record to show that the Appellant did comply with the condition for stay of execution pending appeal as ordered. The Respondent has submitted that the Appellant's failure to comply with these orders further undermines his credibility and any claims of having acted in good faith. The Appellant did not file supplementary submissions to counter this submission by the Respondent. The Respondent submits that the Appellant's non-compliance demonstrates a reluctance to engage with the court process, thereby rendering the appeal unfounded. On compliance with court orders, which the Appellant is alleged to have failed to do, **Justice Froneman** had the following to say in the South African case of **BURCHELL V. BURCHELL, CASE NO 364/2005** ***“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the courts and requires other organs of state to assist and protect the courts. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”*** 1. The Court observed in **Gianfranco Manenthi & Another vs. Africa Merchant Assurance Company Ltd [2019] eKLR**, thus:- *“… the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails.* *Further, order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgement involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal … Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine. “* 29. Based on the foregoing, this Court finds that the trial Adjudicator did not err on any point of law. Therefore, the appeal does not succeed. The same is dismissed with costs to the Respondent assessed at Kshs.30,000/=. JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 13TH APRIL 2026 **NOEL I. ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 13TH APRIL 2026