https://new.kenyalaw.org/akn/ke/judgment/scc/2026/172

Gatiti t/a Martine Enterprises v Board of Management, Dr Ribeiro School (Commercial Case E1712 of 2026) [2026] SCC 172 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] SCC 172 (KLR) Republic of Kenya In the Milimani Small Claims Court Commercial Case E1712 of 2026 M Cherotich, RM July 17, 2026 Between Martin Mugo Gatiti T/A Martine Enterprises Claimant and The Board Of Management, Dr Ribeiro School Respondent Ruling Introduction 1.The Applicant filed an application dated 8th June 2026 seeking the following orders:i.Spent;ii.Spent;iii.That the exparte judgement delivered on 1st April 2026, the Decree issued on 30th April 2026, and any execution processes initiated pursuant thereto, be set aside in their entirety;iv.The Respondent/Applicant be granted leave to file and serve its Response to the Statement of Claim out of time, and that the draft Response attached hereto be deemed as duly filed and served upon payment of the requisite court fees; andv.The costs of this application be in the cause. 2.The Application is premised on the grounds set out therein and is supported by the Affidavit of Jacob Nderitu. 3.The Application was opposed by the Respondent through a replying affidavit dated 14th July 2026. He deposed that proper service of the pleadings was effected upon the Applicant, but he failed and/or ignored to file any response within the prescribed timelines. Further, the applicant has not demonstrated any sufficient cause or excusable reason to justify the failure to attend court and/or defend the suit despite being duly served. The application is therefore mischievous and made in bad faith, and it is in the interest of justice that the application be dismissed with costs. Issue for determination 4.The sole issue for determination is whether the Applicant has satisfied the conditions for setting aside the default judgment delivered on 1st April 2026. Analysis and determination 5.Section 11(4) of Small Claims Court Rules 2019 states that: The court may set aside a default judgement 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;(a)the default was inadvertent;(b)the applicant has a valid defence with a probability of success:(c)there are sufficient grounds to warrant setting aside the default judgment, decree or order. 6.The Court is guided by the case of Rebecca Wanjiku Mathenge v Alphine Insurance Brokers Limited [2018] eKLR where it was held as follows; “The purpose of the discretion granted to the Court to set aside proceedings is intended to aid a party who would otherwise suffer injustice or hardship as a result of an inadvertent or excusable mistake. It should by no means be used to delay or obstruct the cause of justice. This has held true since the days of Mbogo & another v Shah [1968] EA 93. A party seeking exercise of this discretion in their favour must therefore demonstrate that failure to participate in the proceedings was as a result of an unintentional mistake which could be made by a reasonable person in the course of ordinary business. The discretion cannot be used to cure general carelessness or ineptitude”. 7.In the instant case, the applicant acknowledges receipt of the mention notice dated 25th March 2026 and served on 31st March 2026. Further, the applicant contends that the said notice afforded them less than 24 hours to prepare for the mention scheduled for 1st April 2026. 8.The Applicant depones that, upon receipt of the mention notice, they immediately forwarded the same to the Ministry of Education and the Office of the Attorney General for legal representation. However, this assertion is unsupported by any evidence. There is no forwarding letter, dispatch register or acknowledgement of receipt that has been annexed to demonstrate that the mention notice was indeed transmitted to the Ministry of Education or the Office of the Attorney General. In my view, the allegation remains a bare assertion that is incapable of verification. 9.The Applicant’s account of service presents an incomplete and selective account of the CTS record. The Applicant makes no disclosure and/or reference to the earlier services effected upon them. The Applicant confines its case to the service effected on 31st March 2026 in an apparent attempt to portray that it is the only service received. 10.The Court record tells a different story. The Affidavit of Service, sworn on 8th February 2026, evinces that the Claimant’s advocate served the Applicant via email on 12th February 2026. Thereafter, on 13th February 2026, the Applicant was physically served with the pleadings and acknowledged receipt by affixing its official stamp. Subsequently, an Affidavit of Service sworn on 13th March 2026 confirms that the Applicant was served with a Mention Notice, which was also acknowledged by stamping. 11.It is therefore evident that the Mention Notice served on 31st March 2026, upon which the Applicant exclusively relies, was in fact the third service. The Applicant's failure to disclose the earlier services of 13th February 2026 and 13th March 2026 creates a misleading impression that the Applicant only became aware of the proceedings upon receipt of the mention notice on 31st March 2026. 12.The record shows a clear indication that the Applicant was not only aware of the existence of the suit but was also kept apprised of its progress. 13.Despite service of the pleadings and mention notices, the Applicant failed to enter appearance and/or file a response within the prescribed timelines. The applicants deliberately chose not to participate in the proceedings. This conduct, in the Court’s view, demonstrates indolence rather than an excusable error. 14.This Court is not persuaded by the explanation proffered by the Applicant, as to allow the application would amount to assisting a party who seeks to obstruct and/or delay the course of justice. 15.Having established that the applicant was duly served with the pleadings and the mention notices, I find that the conditions set out under section 11(4) of the Small Claims Court Rules 2019 have not been met. Disposition 16.In light of the foregoing, I find that the application is devoid of merit. The same is hereby dismissed with costs of Ksh. 10,000/= to the Respondent/ Claimant. DATED, SIGNED AND DELIVERED VIRTUALLY AT MILIMANI SMALL CLAIMS COURT THIS 17th DAY OF JULY 2026.CHEROTICH MARYLEENADJUDICATOR/RESIDENT MAGISTRATEIn the presence of: -Ms. Achola for the Applicant.Mr. Kahuthu for the Respondent.