https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12519

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS HIGH COURT CIVIL APPEAL NO E115/2025 Hanna Almas Vs Mohammed Yahya & another Ruling Before the court is an appeal against the ruling delivered on 10th April 2025 by Hon Mercy Kinanu Thibaru in Machakos Small Claims Court claim number E724 of 2023. The prayers sought with regard to the ruling are: 1. That the learned magistrate erred both in law and in fact by dismissing the applicant's application dated 6th March 2025. 2. That the learned Honorable Principle Magistrate erred both in law and in fact in failing to properly consider the fact that the applicant was not served with summons and statement of claim. 3. That the learned magistrate erred in law and in fact that once service effected through WhatsApp and it shows green tick then it confirms that the appellant was served. 4. That the learned magistrate erred in law and in fact by finding that the service upon the applicant was proper. 5. That the learned magistrate erred in law and in fact by dismissing the application on the ground that the appellant has not offered possible explanation for delaying. 6. That the learned magistrate failed to consider that failure to annex draft defense is not a ground to dismiss the application. 7. That the learned magistrate erred in law and in fact that the appellant had failed to offer sufficient to grant order sought. 8. That the learning magistrate erred in law and in fact by misdirecting herself that the court could not issue orders sought. Parties then filed written submissions. APPELLANT'S SUBMISSIONS They are dated 24th March 2026. The listed the issues for determination to be: * Whether the applicant was served with the summons. * Whether the cell phone upon which service was affected belongs to the applicant. * Whether the applicant admitted that she was served through cell phone number 0721431147 * Whether the applicant deserves the orders sought. It was submitted that the applicant appellant has denied that she was served with the summons to enter appearance as the details on CR12 are not her details since the same are for the agent who was contracted to apply on her behalf at the time of the registration of her company. Her telephone number is 0737 722 174 and denied that she received the notice of proclamation through telephone number 0721 431 147. That the telephone number 0721 431 147 was only used by her agent when she was applying to register her company. They concluded that the applicant deserves the orders sought. 1ST RESPONDENT'S SUBMISSIONS They are dated 31st March 2026. They indicated that the issues for determination were: 1. Whether or not the interlocutory and final judgements delivered by the Small Claims Court are regular? 2. Whether or not the interlocutory and final judgement of the Small Claims Court ought to be set aside? It is their contention that the interlocutory and final judgment of the Small Claims Court should not be set aside because they were regular and the appellant has not demonstrated why the court should exercise its unfettered discretion in her favour. That the appellant should have proved the following: 1. Given reason for failure to file his memorandum of appearance or response. 2. Brought the application without undue delay. 3. Demonstrated that its intended defense or response raises triable issues. They argued that the appellant failed to meet any of these three requirements. They also fade to annex a draft response or defense to application. They urged the court to dismiss the appeal here with costs. What was at stake in the Small Claims Court matter was an application for stay of execution and setting aside of an exparte judgment. The issue for determination now is whether the court should set aside the ex perte judgment /decree. Setting aside an exparte judgement is a matter of the discretion of the court. In the case of Esther Wamaitha Njihia and two others versus Safaricom Ltd (2014) KEHC 6699 (KLR) the court stated: “The discretion is free and the main concern of the court is to do justice to the parties before it (see Patel versus EA Cargo Handling Services Limited (1974) EA 75) , the discretion is intended to be exercised to avoid injustice or hardship resulting from the 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 versus Mbogo ,(1967) EA 116) the nature of the action should be considered the defensive initial be considered, the defense 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 versus Gasyali (1968) EA 300) It also goes without saying that the reason for failure to attend should be considered.” I have looked at the claim that had been lodged, it involved a cyclist and motor vehicle accident. Such kinds of accidents are very contentious as the issue of who is to blame has to be determined. Ideally, such cases should be determined on merit after hearing both parties. This alone is a good ground to set aside an exparte judgement. Again it is a principle of natural justice that both parties have a right to be hard. I find that it would be unjust and a miscarriage of justice to deny a party who has expressed the desire to be heard the opportunity of prosecuting their case in court. The respondent should have been granted costs for the delay in the determination of the matter. Accordingly I find that this is a proper case for the court to exercise its discretion in favor of the appellant. Accordingly, I hereby set aside the exparte judgement delivered on 10th April 2025 and all consequential orders; and now order that this suit proceeds for hearing afresh. The appellant has 30 days to file their response in the small claim smart matter. Each party to bear its own costs. READ AND PUBLISHED IN THE CTS THIS 22ND JULY 2026 IN THE PRESENCE OF: NO APPEARANCE BY EITHER PARTY BEFORE HON JUSTICE JOYCE GANDANI