https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11249

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **MISCELLANEOUS CIVIL APPLICATION NO. E011 OF 2026** **JOHN MWAI GICHUKI.......................................................... APPLICANT** **VERSUS** **SIMON MUTHURI MWITI....................................................... RESPONDENT** **RULING** 1. This is an application dated 13th February 2026 brought by way of Notice of Motion under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. 2. The Applicant seeks the following orders: 3. **THAT this application be certified as urgent and be heard ex-parte in the first instance;** 4. **THAT pending the hearing and determination of this application, there be a stay of execution of the Judgment/Decree issued in Meru SCCC No. E382 of 2025;** 5. **THAT the judgment and decree in Meru SCCC No. E382 of 2025 be set aside and the Applicant be granted unconditional leave to defend the suit;** 6. **THAT the suit in Meru SCCC No. E382 of 2025 be transferred to the Chief Magistrate’s Court at Meru for hearing and determination;** 7. **THAT costs of this application be in the cause.** 8. The application is supported by the Affidavit of JOHN MWAI GICHUKI sworn on 13th February 2026 and a Supplementary Affidavit sworn on 30th March 2026. It is opposed by the Replying Affidavit of SIMON MUTHURI MWITI sworn on 21st February 2026. 9. The background to this application arises from Meru SCCC No. E382 of 2025 wherein the Respondent sued the Applicant for material damage arising from a road traffic accident that occurred on or about 9th July 2022 along Meru-Nanyuki Road at Timau area involving Motor Vehicle Registration No. KCU 440U belonging to the Respondent and Motor Vehicle Registration No. KCU 515X Toyota Fielder belonging to the Applicant. 10. On 6th August 2025, the Small Claims Court entered judgment in default against the Applicant in the sum of Kshs. 213,000.00. Thereafter, a Proclamation Notice and Warrant of Attachment were issued against the Applicant’s Motor Vehicle KCU 515X. 11. On 6th February 2026, the Applicant filed an application in the Small Claims Court seeking stay of execution and leave to defend. The said application was dismissed on 10th February 2026 for want of jurisdiction. 12. Aggrieved, the Applicant moved this Court with the present application seeking essentially to stay execution, setting aside of the default judgment and have the suit transferred to a court of competent jurisdiction. 13. The Applicant depones that he forwarded the court documents to his insurer, Directline Assurance Company Limited, but the insurer failed to defend the suit. 14. He states that he has a valid defence with a probability of success and has annexed a draft response to the Statement of Claim. He relies on the case of **Gathaiya v Attorney General & 2 Others & 176 Interested Parties KEHC 290 (KLR)** for the proposition that the Small Claims Court lacks jurisdiction to hear material damage claims. 15. It is his position that it is in the interest of justice that he be allowed to defend the suit on merit. That the Respondent will suffer no prejudice. 16. The Respondent depones that the application is frivolous and is only aimed at denying him the fruits of his judgment. He states that the Applicant was duly served and that the judgment was therefore regularly entered. 17. He avers that the Draft Defence annexed is a mere denial and does not raise triable issues. He further states that the Applicant has not demonstrated any good reason for failing to enter appearance and file defence on time. 1. The Respondent prays that the application be dismissed with costs. In the alternative, he proposes that if stay is granted, the Applicant should deposit the decretal sum of Kshs. 213,000.00 in a joint interest earning account and pay auctioneer’s fees. 2. In his supplementary affidavit, the applicant opposes the Respondent’s prayer for deposit of the decretal sum of Kshs. 213,000.00 and auctioneer’s fees. He terms it irregular and prejudicial as the suit is yet to be heard by a court of competent jurisdiction. 3. I have considered the application, and the affidavits on record. The issues that arise for determination are: 4. **Whether the Applicant has made out a case for stay of execution;** 5. **Whether the Applicant should be granted leave to defend the suit and for the judgment to be set aside;** 6. **Whether the suit should be transferred to the Chief Magistrate’s Court;** 7. **Who should bear costs.** 8. It is not in dispute that the Small Claims Court dismissed the Applicant’s earlier application for want of jurisdiction. The court was not clear if it was in reference to the application before it or to the entire suit. 9. I do understand the dilemma that the applicant was in. The consequence of the decision by the trial court is that when it held it had no jurisdiction, then its judgment would have to be deemed to have been delivered by a court without jurisdiction. Therefore, there would be no valid judgment or decree to be executed. Despite all this, execution was proceeding on the decree therein, prompting the applicant to move to this court. 10. In my view allowing an execution in a forum that had already declared that it lacks jurisdiction would be a travesty of justice. 11. Reference was made to the decision in **Gathaiya v Attorney General (supra).** That decision was to the effect that the Small Claims Court did not have jurisdiction to entertain personal injury claims arising from road traffic accidents. The decision did not affect claims for special damages for material damage to property, as set out under section 12(1) of the Small Claims Act. 12. In my view, the lower court had jurisdiction to entertain the claim and having entered default judgment, it had the power to hear an application to set that default judgment aside, under the provisions of section 43 of the Act. 13. So what orders should issue? 14. It is my view that the trial court ought to first hear and determine the application on its merits. Any party aggrieved by the decision made may then appeal to this court. 15. In the upshot, I find merit in the application. The same is partly allowed in the following orders: 16. **The orders by the trial court issued on 18th February 2026 are set aside.** 17. **The parties are referred back to the trial court for the determination of the application dated 6th February 2026.** 18. **There will be a stay of execution of the judgment and decree issued on 6th August 2025 in Meru SCCC No. E382 of 2025 pending the hearing and determination of the said application.** 19. **THAT costs of this application shall be determined by the lower court.** 20. It is so ordered. **Dated, signed and delivered at Meru this 16th day of July 2026** **H. M. NYAGA** **JUDGE**