https://new.kenyalaw.org/akn/ke/judgment/scc/2026/158

Kebeney v Trackstar Uganda Limited (Civil Case E005 of 2026) [2026] SCC 158 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] SCC 158 (KLR) Republic of Kenya In the Small Claims Court at Eldoret Civil Case E005 of 2026 ME Aligula, RM July 15, 2026 Between Benjamin Kebeney Claimant and Trackstar Uganda Limited Respondent Ruling 1.The respondent filed the application dated 22nd June, 2026 and inter alia sought orders that the judgment entered against it on 8th June, 2026 and all the consequential orders be set aside and it be allowed to defend it, stay of execution of the judgment and decree delivered and issued on 8th June, 2026. The grounds of the application were on the face of the application. 2.The claimant filed a replying affidavit in opposing to the application. The claimant averred that the respondent was served but deliberately declined to enter appearance and defend its case, that the application is made in bad faith and calculated to mislead this honorable court and the same is without merit and ought to be dismissed with costs. The court is required to determine whether the application has merit and the party to bear the costs thereof. 3.Matters in this court should be determined within sixty days in compliance with the provision of section 34 of the Small Claims Court Act No 2 of 2026. This matter ought to have been concluded. The statement of claim was filed in court on 7th January, 2026. 4.I have looked at the certificate of service sworn by Dennis Cheruiyot on 19th January, 2026, which stated that the respondent was served with the statement of claim together with accompanying documents and the first mention on 7th January, 2026 via its known email address. The documents were further served via WhatsApp number 0704230221. There was nothing on record to suggest that the certificate of service filed by the claimant indicating that the respondent was served with the pleadings and the relevant notices contained falsehoods. Further, the respondent confirms that service was done and the documents were transmitted to its insurance Mayfair insurance co Ltd for appointment of an advocate on its behalf. That the insurance initiated out of court negotiations with the claimant to settle the matter out of court but the same were unsuccessful and by the time they appointed an advocate default judgment had already been entered. 5.The respondent knew that it had to comply within 15 days but failed to do so, and subsequently default judgment was entered on 8th June, 2026, consequently the decree herein was issued on 22nd June, 2026. The respondent ought to have filed appropriate papers first and try to pursue an out of court. Having confirmed that the respondent was indeed served it is clear that the judgment was therefore regular. 6.As to whether the judgment entered should be set aside the court refers to Section 43 of the Small Claims Court Act where the court is allowed on application of any party to the proceedings to set aside any of its orders and make such further orders as it thinks just. 7.The court is guided by the celebrated case of Shah vs. Mbogo & Another [1967] EA 116. The court held that whether or not to set aside ex parte judgement is discretionary is not in doubt and that the discretion is intended so to be exercised to avoid injustice and 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. See In Potters House Academy v Leah Chemeli Kemer [2022] eKLR the court held that: “In an application to set aside an ex parte hearing the Court ought to listen to what explanation or excuse the applicant has that prevented them from attending Court. If found reasonable, the application ought to be allowed.” 8.This Court is alive to the fact that currently the High Court is divided on the legality of decisions made by this Court after the expiry of sixty days stipulated in section 34 of the Small Claims Court Act No 2 of 2016. 9.Setting aside default judgment is judicial discretion where the court should strike a balance between the right to be heard with the right to timely justice. The discretion should not assist a person who has deliberately sought whether by evasion or other wise to obstruct or delay the course of justice. Shah vs. Mbogo & Another (Supra). 10.Therefore, based on the conclusion above, the application lacks merit and is hereby dismissed with costs to the claimant. Parties are granted leave to appeal.30 days stay of execution is granted. SIGNED AND DELIVERED AT ELDORET THIS 15TH DAY OF JULY, 2026.MILLIAN E. ALIGULA -RM