https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10822

Dida v Tano (Miscellaneous Civil Application E029 of 2026) [2026] KEHC 10822 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10822 (KLR) Republic of Kenya In the High Court at Meru Miscellaneous Civil Application E029 of 2026 SM Githinji, J July 16, 2026 Between Jarso Boru Dida Applicant and Mohamed Daud Tano Respondent Judgment 1.For determination is the Notice of Motion dated 24/3/2026 under Section 43 of the Small Claims Court Act, Order 51 of the Civil Procedure Rules and Sections 1A, 1B and Section 3A of the Civil Procedure Act, seeking that:1.Spent2.Spent3.This Honourable Court be pleased to set aside and/or vacate the Default Judgement entered on 4th February 2026 against the Applicant and allow this suit to be heard on merit.4.The costs of this Application be in the cause. 2.The application is premised on the grounds that the Applicant neither knew nor participated in the proceedings leading to the default Judgment of 4/2/2026 and the subsequent decree issued on 12/2/2026. The request for default judgment was thus unprocedural, having been made by Mungai JK & Company Advocates who were not properly on record for the Claimant. He is desirous of participating in this suit and has a meritorious defence raising serious issues that require determination by this court. The hearing and determination of this matter without his involvement is a farce, null and void. Mulak Auctioneers, on the instructions of the Respondent, proclaimed his movable assets in purported execution of the warrants of attachment issued on 4/3/2026, and he stands to suffer great prejudice, irreparable loss and harm if the default Judgment is not set aside. 3.The Respondent swore a Replying Affidavit on 7/4/2026 in opposition to the application. He averred that this Court lacks jurisdiction to entertain the application, as the original jurisdiction of the High Court in all Civil and Criminal matters cannot be improperly used to supersede statutes such as the Civil Procedure Rules. A regular default Judgment was entered against the Applicant on 4/2/2026, and the proper recourse is provided under Order 10 of the Civil Procedure Rules, where the trial Court, upon application, may set aside a default Judgment. The Applicant’s statutory 30 days to appeal to this Court from the Small Claims Court have lapsed, yet no Memorandum of Appeal in SCCOMM/E567/2025 has been filed. 4.The application was canvassed by way of written submissions, which were duly filed by Counsel. Determination 5.Having considered the application, the responses thereto, and the written submissions together with the authorities relied on, I find the sole issue for determination to be whether it is merited. 6.The application is predicated on Section 43 of the Small Claims Act, which provides that; “The Court may, on the application of any party to the proceedings, set aside any of its orders and make such further orders as it thinks just.” 7.Court is defined under Section 2 of the Act to mean a Small Claims Court established under Section 4 thereof. 8.Order 10 Rule 11 of the Civil Procedure Rules provides that; “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.” 9.The jurisdiction of this court has been improperly and prematurely invoked, as what is before the Court is an application rather than an appeal. The Applicant ought, in the first instance, to have moved the trial Court to set aside the default Judgment. It is only upon the determination of such an application that the Applicant would properly invoke the appellate jurisdiction of this court. The Court of Appeal in Waweru v Maina [2025] KECA 50 (KLR), has definitively espoused that; “When confronted with an application to set aside a default or ex parte judgment, therefore, the first task of a trial court is to determine if the default judgment is an irregular or regular one. If it is the former, the trial court must be set aside the default judgment as a matter of right. If it is the latter, the trial court has unfettered discretion to determine if there is good cause and may set the default judgment aside if it so finds.” 10.As submitted by Counsel for the Respondent, and correctly so, the proper procedure for a party seeking to challenge a default Judgment is to move the court that rendered the Judgment to set it aside. 11.In the circumstances, I find that the application dated 24/3/2026 is not only incompetent but also an abuse of the Court process, and it is hereby dismissed with costs to the Respondent. 12.File is closed. DATED AND DELIVERED AT MERU THIS 16TH DAY OF JULY, 2026.S.M. GITHINJI –JUDGE16/7/2026In the presence of:-Mr. Munyanyi holding brief for Mr. Ogutu for the Applicant.Respondents - Absent