Jentrix Nasimiyu & Desmond Omukada Omanyala (Suing as Legal Representative of the Estate of Wycliffe Emojong Omukada) v Africa Merchant Assurance Co Ltd

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MALABA** **CIVIL CASE NO. E004 OF 2026** **JENTRIX NASIMIYU & DESMOND OMUKADA OMANYALA (Suing as Legal Representative of the estate of Wycliffe Emojong Omukada)…………………………….**………………………………………………………….. **PLAINTIFF** VERSUS **AFRICA MERCHANT ASSURANCE CO LITD.…………………………..RESPONDENT** **RULING.** 1. What is before me for determination is the Defendant’s application dated 5th June 2026 in which the Applicant seeks the following orders:- 2. *Spent* 3. *Spent* 4. That the court be pleased to set aside the interlocutory/default judgment entered against the Defendant herein together with all consequential proceedings. 5. That the suit be reopened and the Defendant/Applicant be granted leave to enter appearance and file its Statement of Defence out of time and the suit be heard de novo 6. That the draft Statement of Defence annexed herein be deemed as duly filed and served upon payment of the requisite court fees. 7. That the Advocate Samuel Mabonga be granted leave to represent the Defendant herein 8. That costs of this Application be provided for. 9. The Application is supported by the Supporting Affidavit of James Macharia Wahome and on grounds that the matter proceeded for hearing on 6th May 2026 without service of a Hearing Notice and the Defendant only became aware of the status of the suit on 3rd June 2026. That proceedings conducted in the absence of service offends the rules of natural justice. That no prejudice shall be suffered by the Plaintiff if the orders sought are granted and that it is in the interest of justice that the application be allowed as prayed. The defendant further contends that he has a good and arguable defense. 10. The application is opposed vide the Plaintiff’s Replying Affidavit sworn on 6th day of June 2026 wherein it is deponed that the Defendant was duly served with all pleadings including summons to enter appearance and failed to file a defense within the required timelines and subsequently interlocutory judgment was entered. That the Defendant was further informed that the matter was scheduled for hearing on 6th May 2026 and failed to attend court. Submissions were filed and the matter was reserved for judgment. A judgment notice was equally served upon the Defendant. That the Defendant’s intention is to delay the conclusion of this matter and that if the interlocutory judgment is set aside, it would greatly prejudice the Plaintiff. 11. This matter came up for mention for directions on 12th August 2026 when both counsel confirmed having filed submissions and the court reserved the matter for ruling on 9th September 2026. 12. The only issue for determination is ***Whether the Application is Merited.*** 13. I have considered the application, the response thereto and the submissions by the respective parties. The first issue that falls for determination is whether the Defendant was accorded a proper opportunity to participate in the proceedings leading to the judgment sought to be set aside. 14. It is not in dispute that the Defendant was initially served with the pleadings and was therefore aware of the institution of the suit. However, the record further reveals that, on the date when the matter proceeded to hearing/formal proof, what was served upon the Defendant was a mention notice, rather than a hearing notice. 15. The distinction is material. A mention notice ordinarily notifies a party that a matter is coming up for mention or directions; it does not, notify a party that the matter is scheduled for substantive hearing. This distinction assumes particular significance where the matter proceeds by way of formal proof, notwithstanding the prior entry of interlocutory judgment. 16. The position was aptly considered in [**Busia Sugar Industry Limited v Agriculture, Fisheries and Food Authority & 2 others [2021] KEHC 6860 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/6860/eng%402021-05-18) where the Court observed that even if a mention notice had been served, the same could not properly be treated as a hearing notice. The Court emphasized that the necessary information concerning the hearing would have been conveyed by proof of service of a hearing notice, rather than a mention notice. 17. In the present case, although there was initial service upon the Defendant, I am unable to find that the subsequent service of a mention notice constituted sufficient notice of the hearing at which the matter proceeded to formal proof. The Defendant was therefore not properly notified that the matter would proceed to substantive hearing on the material date. 18. On this limb alone, I find that the application is merited. The right to be heard cannot be reduced to mere knowledge that a suit exists. A party must, at the material stage, be afforded proper notice of the proceedings at which the court is called upon to determine the issues before it. 19. There is, however, a further consideration which reinforces my conclusion. 20. The Defendant has placed before the Court a draft Defence. I have considered the proposed pleadings and, at this interlocutory stage, I am not required to determine the ultimate merits of the defence. The question is whether the defence raises a bona fide issue which merits interrogation at trial. 21. In my view, it does. In particular, the Defendant disputes whether it authorized the execution of the alleged consent upon which the impugned proceedings are founded. It also raises an issue as to the very existence of the primary suit and the judgment said to have arisen therefrom. These are not matters that can, in my view, be dismissed as mere technicalities or sham issues. Whether the Defendant authorized the alleged consent, and whether there in fact existed a primary suit and judgment capable of giving rise to the subsequent proceedings, are matters which warrant interrogation by a court upon hearing the parties. 22. I am therefore satisfied that the proposed Defence raises triable issues which ought not, in the circumstances of this case, be shut out without the Defendant being afforded an opportunity to be heard. 23. The Court is mindful that the discretion to set aside a judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable error, while at the same time ensuring that a party who has deliberately obstructed the course of justice does not obtain an undeserved advantage. In the present circumstances, the initial service of the suit does not cure the subsequent failure to give proper notice of the hearing at which the matter proceeded to formal proof. The existence of a defence raising issues deserving of trial further tilts the balance in favour of allowing the application. 24. As regard the prayer for leave for the Defendant to be represented by counsel, I do not consider that prayer to require a substantive order of the court. A party is entitled to appoint an advocate of his or her choice. The order is equally not necessary in the circumstances of this case noting that the judgment previously entered was interlocutory and is by the orders herein being set aside. The suit shall consequently proceed to hearing on merits. 25. As regards costs, I consider that this is an appropriate case in which costs should be in the cause. The order setting aside the proceedings is principally founded upon the want of proper hearing notice, while the Defendant has also demonstrated the existence of issues deserving determination on their merits. In the circumstances, I find it fair and just that the question of costs be reserved to abide the outcome of the substantive proceedings 26. Accordingly, I find the application merited and allow it in the following terms: - 27. ***That this Honorable Court be and is hereby pleased to set aside the interlocutory judgment entered against the Defendant herein together with all consequential proceedings.*** 28. ***That the Draft Statement of Defence annexed herein be and is hereby deemed as duly filed and served upon payment of the requisite court fees which payment shall be done within seven days from the date hereof.*** 29. ***The Plaintiff shall, if need be file and serve a Reply to Defence within fourteen (14) days of service of the Defence.*** 30. ***Costs shall be in the cause.*** 31. ***The matter shall be mentioned for further directions on 21st October 2026.*** **RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 9TH DAY OF SEPTEMBER 2026.** In the Presence of Ms. Kathure h/b for Mr. Nyegenye for the Plaintiff Mr. Muhonji for the Defendant Court Assistant: Paul Otieno **A.Z. OGANGE** **RESIDENT MAGISTRATE** 09.09.2026