https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12321

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCOMM NO. E322 OF 2024** **INFINITY INDUSTRIAL PARK** **LIMITED…………………….………….…….PLAINTIFF/ RESPONDENT** **VERSUS** **BANK OF BARODA (KENYA) LIMITED…DEFENDANT/APPLICANT** **RULING** 1. This ruling determines the Defendant/applicant’s Notice of Motion dated 29th September 2025, brought under Articles 50(1) and 159 of the Constitution of Kenya 2010, Section 1A, 1B and 3A of the Civil Procedure Act, Order 10 Rule 11, Order 12 Rule 7 of the Civil Procedure Rules, and all other enabling provisions of the law. In a nutshell, the Applicant seeks a stay of execution of the ex parte judgment dated 8th September 2025, the intended formal proof, and the setting down of the suit for hearing. And that the memorandum of appearance and statement of defence dated 29th September 2025 be deemed duly served upon the Plaintiff’s advocates on record. 2. The application is grounded in the face of the record and supported by the annexed affidavit of Lawrence Ng’ang’a and the further affidavit of Wilson Mwaura. It was contended that the suit was commenced by a Notice of Motion, which was dismissed by the court, and that subsequently the Plaintiff filed a request for judgment before directions were taken on how the pleadings would be regularised. 3. It is alleged that summons to enter appearance were never served upon the Defendant; the Defendant was served only with the plaint, the Notice of Motion, and the orders of the court. That the Defendant has raised weighty triable issues in its defence, namely the subject of a replacement charge over the Plaintiff’s property (L.R. No. 31978, original No. 11522) and the loan amount charged. That the Plaintiff was served with a statutory notice of Kshs. 2,070,592,869/= on 1st September 2025 with respect to the loan facility. It is averred that the default judgment dated 8th September 2025 is unprocedural and against the law. 4. The Plaintiff opposes the application through the Replying affidavit of Ashok Rupshi Shah sworn on 9th January 2026. He claims the application is made in bad faith and is a deliberate attempt to obstruct justice, constituting an abuse of court process. He states that the Notice of Motion, plaint, and all supporting documents were served on the Defendant on 21st June 2024. The Defendant entered an appearance on 24th July 2024 and opposed the application. After the Plaintiff’s application was dismissed, the Defendant was given time to file a statement of defence. The case proceeded to a pre-trial conference on 8th September 2025, but the Defendant failed to file a defence within the court’s prescribed timeframe. 5. He further avers that by filing a Notice of Appointment, the Defendant submitted to the court’s jurisdiction and cannot be heard to complain of the lack of service of the Summons to enter an Appearance. That the Default judgment is proper and regular, and the failure to file a defence shows the Defendant’s own indolence and disregard for the court’s timelines. He avers that the Defendant has not demonstrated any prejudice. 6. The application was heard by way of written submissions. The Defendant/applicant’s submissions are dated 17th February 2026, while the Plaintiff’s submissions are dated 16th March 2026. **Analysis and determination** 1. The court has considered the application, the response and the submissions. The issue that arises for determination is whether the Defendant deserves the orders sought. 2. **Order 10, rule 11** of the **Civil Procedure Rules** deals with setting aside an ex parte judgment. It 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.”*** 1. The court has jurisdiction to set aside a judgment entered for non-appearance and in default of defence. To set aside a default judgment, the applicant ought to demonstrate that they were not served with the summons to enter an appearance and, where it is clear that service was effected, and therefore the judgment on record is regular, they must demonstrate that they have a defence that discloses triable issues. 2. **The Court of Appeal in Philip Keipto Chemwolo & Mumias Sugar Company Ltd v Augustine Kubende [1986] KLR 495** held that: ***“The court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties - Kimani v MC Conmell (1966) EA 545 where a regular judgment had been entered the court would not usually set aside the judgment unless it was satisfied that there is a triable issue*.*”*** 1. The Applicant contends that the judgment is invalid because the Summons to Enter Appearance were never served. According to Order 5 Rule 1(1) of the Civil Procedure Rules, a suit must be commenced by a summons signed and sealed by a judge or an authorized officer. The summons serves to notify the defendant to appear and to file a defence within the set timeframe. It is a key document that outlines the claim and the obligation to respond. 2. It is not disputed that the Defendant was served with the Plaint, the Notice of Motion and the orders of the Court. The Plaintiff asserts, and the Defendant does not deny, that it entered an appearance on 24th July 2024 through its advocates on record. Having entered an appearance, the Defendant placed itself squarely within the Court's jurisdiction. 3. It is not in dispute that after the dismissal of the Plaintiff’s application, the Court granted the Defendant leave to file its Statement of Defence within a specified period. The Defendant was represented by counsel and was fully aware of that order. It failed to comply. The default judgment was entered on 8th September 2025 when the matter was listed for a pre-trial conference, and no defence had been filed. On the face of the record, the judgment is regular. 4. The jurisdiction to set aside a default judgment is a discretionary one, to be exercised judiciously and upon settled principles. 5. In the present case, the Defendant’s explanation for failing to file a defence within the time ordered by the Court is essentially that Summons to Enter Appearance was not served. As I have already found, the Defendant entered an appearance, participated in the interlocutory proceedings, and was expressly granted leave to file a defence. The Defendant was represented by counsel throughout. The failure to comply with the Court’s timeline is not attributable to the absence of formal summons; it is simply a case of non-compliance with a court order. 6. No affidavit has been sworn by the advocate on record explaining any mistake, inadvertence or other excusable circumstance that led to the failure to file the defence. Litigation cannot be conducted at the convenience of one party while the opposing party diligently complies with the Court's directions. The Defendant’s conduct amounts to indolence. The Court will not exercise its discretion in favour of a party who has shown a disregard for its orders. 7. The Defendant has also argued that there are triable issues regarding the replacement charge over L.R. No. 31978 (Original No. 11522), the secured amount, and the statutory notice for Kshs. 2,070,592,869/= allegedly served on 1st September 2025. While I acknowledge these are significant matters, having a triable issue alone is not enough. The Defendant must first provide a satisfactory explanation for why the defence was not filed timely. Without a credible reason, the existence of triable issues does not automatically justify setting aside the case. 8. The Constitution, specifically Article 159(2)(b), mandates that courts must deliver justice without unnecessary delays. The Civil Procedure Act emphasizes that civil disputes be determined fairly, quickly, proportionately, and affordably, as outlined in Sections 1A and 1B. A party that neglects its rights cannot later rely on the Constitution to avoid the repercussions of its own inaction. 9. In the result, the Defendant’s application dated 29th September 2025 is devoid of merit and is dismissed. **RULING** delivered virtually, dated and signed at **NAIROBI** This **31st** day of **July** 2026. **PETER M. MULWA** **JUDGE** **In the presence of:** *Ms. Jane Okoth* for Plaintiff/Respondent *Mr. Lawrence Ng’ang’a* for Defendant/Applicant Court Assistant*: Lispa*