https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9411

Patel v Wangari & another (Civil Appeal E686 of 2025) [2026] KEHC 9411 (KLR) (Crim) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 9411 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Civil Appeal E686 of 2025 AC Mrima, J June 30, 2026 Between Harshardkumar Gordhanbhai Patel Appellant and David Njuguna Wangari 1st Respondent John Mwangi Kamau 2nd Respondent (Being an Appeal from the Ruling and Orders of Hon. H.M. Ng’ang’a (PM) in Nairobi (Milimani) Chief Magistrates Commercial Court Civil Case No. E2060 of 2023 delivered on 13th June 2025) Judgment Background: 1.The Appellant herein, Harshardkumar Gordhanbhai Patel, instituted Nairobi (Milimani) Chief Magistrates Commercial Court Civil Case No. E2060 of 2023 (hereinafter referred to as ‘the suit’) against David Njuguna Wangari, John Mwangi Kamau and Samuel Ngugi Kariuki (as Defendants) for recovery of the costs of repair to his motor vehicle registration number KBK 999A resulting from damage allegedly caused by the Respondents’ motor vehicle registration number KCH 789T (hereinafter referred to as ‘the bus’) on 3rd December 2021 at about 5.40 p.m. along Ngong road within Nairobi County. The suit claimed the sum of Ksh. 1,241,690/= made up of repair costs, towing charges, among other charges. 2.David Njuguna Wangari and John Mwangi Kamau, the 1st and 2nd Defendants in the suit and the Respondents in the appeal, entered appearance in the suit, but did not file any defence. Samuel Ngugi Kariuki neither entered appearance nor filed any defence in the suit. Interlocutory judgment was entered against the Defendants in the suit on 6th March 2024 and the matter was set for formal proof hearing. The suit was heard where three witnesses testified being the Appellant, a Motor vehicle Assessor and a Police officer. Final judgment was rendered on 28th October 2024 where the claim was allowed as prayed. 3.The Respondents in this appeal then filed a Notice of Motion dated 22nd November 2024 [hereinafter referred to as ‘the application’] in the suit seeking to inter alia set-aside the judgment. The application was heard and it was allowed vide a ruling delivered on 13th June 2025 [hereinafter referred to as ‘the impugned ruling’]. 4.The Appellant was aggrieved by the impugned ruling and instituted the instant appeal. The appeal was heard by way of written submissions, hence, this judgment. The Appeal: 5.Through a Memorandum of Appeal dated 16th June 2025, the Appellant sought to set aside the impugned ruling on the following grounds of appeal: -1.That the learned Magistrate erred in law and in fact by allowing the Respondent’s Notice of Motion Application dated 22nd November 2024 seeking to set aside the Judgment of Hon. Pauline Mbulika delivered on 28th October 2024.2.That the learned Magistrate erred in law and in fact by holding that the Respondents were not served with Summons to Enter Appearance in the matter while they had entered appearance through Messrs Okao & Company Advocates on 17th July 2023.3.That the learned Magistrate erred in law and in fact by not considering that Interlocutory Judgment against the Respondents in default of filling of their Defence within the prescribed time was entered on 6th March 2024.4.That the learned Magistrate erred in law and in fact by not appreciating the principles behind setting aside of Judgments.5.That the learned Magistrate erred in law and in fact by awarding costs of the Notice of Motion Application dated 22nd November 2025 to the Respondents.6.That the learned Magistrate erred in law and in fact by making findings which were a total misdirection and total deviations from the legal provisions of the law. 6.The Appellant then prayed that the appeal be allowed with costs, the impugned ruling be set-aside and the Notice of Motion dated 22nd November 2024 be dismissed with costs. 7.The Appellant filed written submissions dated 21st October 2025 in further support to the appeal. He raised two issues being whether the Respondents were duly served with the Summons to Enter Appearance and, whether the order on costs to the Respondents was merited. The Respondent’s case: 8.The Respondents did not file any written submissions despite service and having been given several opportunities to participate in vain. Analysis: 9.Despite the non-participation of the Respondents, this Court is still duty-bound to consider the appeal on its merits. Having carefully ventured into the grounds of appeal as set out in the Memorandum of Appeal and the written submissions, this Court will now render itself on the following issues: -i.A general discussion on the legal principles governing the setting aside an ex-parte judgment entered in default of appearance.ii.Whether the application was rightly allowed.(a)The Principles governing the setting aside of default judgments: 10.The jurisdiction of the Court to set aside a judgment entered in default of appearance is a discretionary power of an equitable nature. The statutory foundation for this jurisdiction is found in Order 10, Rule 11 of the Civil Procedure Rules, 2010, which provides as follows: - Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just. 11.The language of the rule, particularly the use of the words ‘may’ and ‘upon such terms as are just,’ signify that the Court's discretion is wide and unfettered. The primary role of the Court, as was observed in the case of Patel -vs- EA Cargo Handling Services Ltd [1974] EA 75, is to do justice to the parties. The proviso is that discretion must not be exercised capriciously, vaguely or arbitrarily. It must be exercised on the basis of reason and justice, and in accordance with established legal principles. 12.The jurisprudence from our Courts has, over the years, crystallized the principles that guide a Court in the exercise of this discretion. The Court of Appeal for East Africa in the locus classicus case of Shah -vs- Mbogo & Another EA 116, laid down the foundational test. The Court held that 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 has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. 13.In discharging the foregoing duty, the key principles that a Court considers are whether the judgment was regularly or irregularly obtained. Subsequently, an Applicant must show a meritorious defence. In this instance, the Court does not need to be fully convinced the defence will succeed, only that it raises triable issues worthy of a hearing. This is often considered the most important factor. 14.Thirdly, the Court considers the period of delay and reasons advanced by the Applicant for failing to enter appearance or file a defence in time. The Court will assess whether the explanation is plausible and demonstrates that the default was not deliberate. 15.Finally, the Court must weigh the potential prejudice to the Respondent if the judgment is set aside against the prejudice to the Applicant if it is not. A key consideration is whether any prejudice suffered by the Respondent can be adequately compensated by an award of costs. 16.With the foregoing legal basis, this Court will now re-assess the learned trial Magistrate's decision. Whether the application was rightly allowed: 17.The Learned Magistrate in the impugned ruling identified two reasons as the basis of allowing the application. The first reason was that the 1st and 2nd Respondents were not served with the Summons to enter appearance in the suit, and the second reason was that the Respondents had, through their draft defence, demonstrated triable issues. A look at the two grounds follows. Whether the 1st and 2nd Respondents were served in the suit: 18.The trial Court dealt with this issue in paragraph 7 of the impugned ruling. The Court was satisfied that the 1st and 2nd Respondents were not served with summons, and as such, could not participate in the proceedings. On his part, the Appellant vehemently opposed that finding and argued that it was contrary to the record. 19.This Court has perused the record in the suit. The 1st and 2nd Respondents, through their Advocates Messrs. Okao and Company Advocates, filed a Notice of Appearance in the suit dated 17th July 2023. Further, on 6th March 2024 when the suit came up before Hon. Wangari Mbulikah, PM, the 1st and 2nd Respondents were represented by one Miss. Gitau, Learned Counsel. Since the Respondents had not filed any defence by then and the Appellant had applied for an interlocutory judgment, the Court entered the sought for judgment against all the three defendants in the suit and set the suit for formal proof hearing on 25th July 2024. However, the Respondents never attended the formal proof hearing. 20.Another pointer to the above is the judgment in the suit delivered on 28th October 2024 by Hon. Mbulikah. The Court stated in the judgment that the 1st and 2nd Respondents entered appearance, but failed to file any defence whereas the third Defendant neither entered appearance nor filed defence despite service. It is, hence, possible that the Learned Magistrate in dealing with the application may not have properly appraised himself of the record. 21.Based on the foregoing, the Learned trial Magistrate, with utmost respect, erred in finding that the 1st and 2nd Respondents were not served with the Court process. Indeed, they were duly served and they proceeded to instruct a firm of Advocates, Messrs. Okao and Company Advocates, which firm filed a Notice of Appointment and even dispatched a Counsel who attended Court on the day interlocutory judgment was entered and the suit fixed for formal proof hearing. As such, the interlocutory judgment as well as the fixing of the suit for formal proof hearing happened in the presence of the 1st and 2nd Respondents’ Advocates. Such state of affairs cannot attest to a finding that the 1st and 2nd Respondents were not aware of the suit. 22.This Court, therefore, finds and hold that the 1st and 2nd Respondents were duly served with the Court process and even participated in the suit. The Draft defence: 23.The other ground on which the trial Court allowed the application was the aspect of the draft defence raising triable issues. This Court has also considered the draft defence. 24.This Court agrees with the trial Court’s rendition on this aspect to the extent that there may have been triable issues in the draft defence. However, since the Respondents were properly served with the Court process, then the judgment would ordinarily not be set aside as of right. It was dependent upon the exercise of the Court’s discretion. As discussed before, such 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 has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. 25.This Court will now consider whether the discretion was exercised judiciously. The Respondents’ Advocates filed a notice of appointment of Advocates dated 17th July 2023. It was until 22nd November 2024 when the very Advocates filed the application. That was a period of over one year and four months. Surprisingly, the Respondents held to the non-service in explaining the delay. As this Court has already found that the Respondents were properly served with summons to enter appearance and their Counsel was present in Court when the interlocutory judgment was entered and the suit fixed for formal proof hearing, then the reason for the delay of over one year and four moths given by the Respondents cannot be deemed as satisfactorily or at all. It appears that the Respondents were only awaken from slumber by the judgment of the trial Court and the resultant execution. 26.This Court, therefore, finds that the delay cannot be attributed to any accident, inadvertence, or excusable mistake or error on the part of the Respondents, but it is designed to assist the Respondents who, without any justifiable reason, decided to deliberately not participate in the hearing of the suit for such a long period of time. Respectfully, therefore, the discretion was not exercised judiciously. 27.There is also the aspect of prejudice to the parties. On one hand, the Appellant is delayed from enjoying the fruits of his judgment in the suit. On the other hand, in the event it turns out that the Respondents were truly not the owners of the bus, whether legally or equitably, and are compelled to satisfy the decree, then they stand to suffer prejudice. The Court finds that the Appellant’s prejudice can be mitigated by securing the judgment sum. That way, the Respondents will be accorded a window to present their case and the Appellant will be assured of the judgment sums in the event he finally succeeds in the suit. That is fair play. 28.On that score, this discussion can be safely brought to an end. Disposition: 29.In this matter, therefore, the appeal is allowed to the extent that the impugned ruling is hereby reviewed such that the judgment in the suit is conditionally set-aside. 30.To that end, the following final orders hereby issue: -(a)The Appeal be and is hereby allowed.(b)The Ruling in the Nairobi [Milimani] Chief Magistrates Court Civil Case No. E2060 of 2023 delivered on 13th June 2025 be and is hereby reviewed as follows: -(i)The finding that the 1st and 2nd Respondents were not served with summons to enter appearance in the suit and that the hearing of the suit proceeded without their knowledge is hereby expunged from the record and is substituted with a finding that the Respondents were duly and properly swerved with summons to enter appearance, that the Respondents then attended Court thereafter, and without any reasonable and justifiable cause, decided not to participate in the formal proof hearing of the suit.(ii)Notwithstanding [i] above, the 1st and 2nd Respondents herein are hereby granted conditional leave to defend the suit.(iii)The Respondents shall deposit the sum of Kshs. 1,607,220/= [Read: Kenya Shillings One Million Six Hundred and Seven Thousand Two Hundred and Twenty Only] in COURT within 21 days of this Order.(iv)In the event of default in [iii] above, the Respondents’ Notice of Motion dated 22nd November 2024 filed in the suit shall stand dismissed with costs and the conditional leave granted in [ii] above shall automatically stand discharged and/or set-aside with liberty to the Appellant to levy execution of the judgment in the suit.(c)The Respondents’ Draft Statement of Defence, which was annexed to the Notice of Motion dated 22nd November 2024, shall be deemed as the Respondents’ Statement of Defence, duly filed and accordingly served. The Respondents shall, however, pay any requisite fees thereto as shall be directed by the trial Court.(d)The suit is hereby remitted to the trial Court for further dealing.(e)The Respondents shall, jointly and severally, bear the costs of the appeal.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 30TH DAY OF JUNE, 2026.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:No appearance for parties though notifiedMichael/Amina – Court Assistants.