Kenya Orient Insurance Ltd v Chemasia (Civil Appeal E172 of 2025) [2026] KEHC 8053 (KLR) (Civ) (4 June 2026) (Ruling)

Kenya Orient Insurance Ltd v Chemasia (Civil Appeal E172 of 2025) [2026] KEHC 8053 (KLR) (Civ) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 8053 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E172 of 2025 D Mburu, J June 4, 2026 Between Kenya Orient Insurance Limited Appellant and Rose Nafula Chemasia Respondent Ruling 1.By a Memorandum of Appeal dated 19th February 2025, the Appellant lodged an appeal to this court against the judgment of the Chief Magistrate’s Court delivered by Hon. E. Riany (PM) on 13th November 2024 in Nairobi Milimani MCCC E711 of 2024. 2.The Appellant raised the following grounds of appeal:1.The learned magistrate erred in law and fact in entering interlocutory judgment in the matter without the benefit of a return of service showing and/or indicating how service was effected and the judgment therein ought not to have been entered.2.The learned trial magistrate erred in law and fact by endorsing warrants of attachment of property issued to Bealine Auctioneers contrary to the procedural guidelines of Order 22 Rule 6 of the Civil Procedure Rules as applies to exparte/default judgment as the case was.3.That the learned trial magistrate erred in law and fact by endorsing the judgment in question without the benefit of a formal proof given the judgment in question is not purely a liquidated matter as it seeks a declaration under statute for which compliance has to be ascertained.4.Ultimately, the Appellant seeks to have the impugned judgment set aside, reversed and/or varied as well as the dismissal of the entire case of the Respondent against it ex debito justiciae. 3.The Appellant therefore seeks that the appeal be allowed with costs, that the judgment delivered by the Hon Magistrate be set aside and the same be substituted with a proper finding/judgment and that the matter be retried before another magistrate of competent jurisdiction other than Hon E. Riany. 4.The said judgment was rendered following a formal proof hearing after the appellant who was the defendant failed to enter appearance and/or file a defence in the matter before the lower court. 5.The appeal was canvassed by way of written submissions. I have carefully considered the parties’ respective submissions. The Appellant urged the court to find that the judgment of the lower court was unlawful for want of service and order for its setting aside. 6.The respondent submitted that Appellant is in the wrong forum and the grounds of appeal and prayers sought are raised in the wrong forum. The respondent further submitted that the grounds of appeal raised by the Appellant ought to have been raised in an application to set aside judgment in the lower court to allow room for the respondent to demonstrate by way of evidence that service was properly done and additionally, the matter was duly heard by way of formal proof prior to judgment being delivered. 7.The respondent further submitted that had the Appellant filed an application to set aside default judgment before the lower court, they would have equally had room to present a defence before the court for it to consider whether they have triable issues to warrant setting aside of the interlocutory judgment which is a prerequisite for court to consider prior to setting aside judgment. That unfortunately, the Appellant did neither of the foregoing, but instead lodged this appeal which does not out rightly state what the Appellant is appealing against in the judgment of the lower court. The respondent therefore urged the court to find that the appeal is incompetent and dismiss and/or strike it out with costs. Analysis and Determination. 8.The sole issue for determination is whether the appeal herein is properly before the court. 9.Order 10 of the Civil Procedure Rules makes provision for the consequences of non-appearance and default of defence. Rule 6 thereof provides for entry of interlocutory judgment in default of appearance and/or defence, and further for formal proof hearing of the case if the claim is non-liquidated. 10.Order 10 Rule 11 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.” 11.The court referred to under Rule 11 above is the same court that entered the default judgment, not the appellate court. The law envisages that a defendant against whom a default judgment has been entered would make an application before the trial court if they wish to set aside the said judgment. The trial court is clothed with unfeterred discretion to set aside any exparte judgment or order. 12.The principles applicable when setting aside a judgment were laid down in the case of Pithon Waweru Maina v Thuka Mugiria [1998] eKLR and restated in the case of Toshike Construction Company Limited v Harambee Cooperative Savings Limited [2019] eKLR to be:i.There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on terms that are just. The main concern of the court is to do justice to the parties and not to impose conditions on itself to fetter the wide discretion given by its rules.ii.The discretion is intended to be exercised to avoid injustices or hardship resulting from accident, inadvertence, or excusable mistake or error.iii.The discretion is not exercised to assist a party who has deliberately sought whether by evasion or tactics to delay the obstruction of justice.iv.The Court of Appeal will not interfere with a judge’s discretion unless it is convinced that the court has misdirected itself on some matter and ended up arriving at the wrong decision. 13.It is trite law that an application to set aside and exparte judgment or order must in the first instance be made before the trial court. It is through such an application that a defendant who disputes service is expected to raise the issue for consideration by the trial court. Once the trial court renders a decision on such an application, any party aggrieved by such a ruling may then lodge an appeal to the appellate court, in this case, to the High Court. There is no way a party can raise the issue of service through an appeal when they never made an application in that regard before the trial court. As rightly stated by the respondent, it is during the hearing of such an application before the trial court that the impugned service of summons to enter appearance would be scrutinised. Similarly, the respondent would be accorded and opportunity to demonstrate that they had effected proper service upon the appellant. 14.Since the Appellant did not apply before the lower court seeking to set aside the default judgment, I do hereby come to the invariable conclusion that this appeal is improperly before this court. The result is that I find the said appeal to be incompetent. I have also found some of the grounds raised in the Memorandum of Appeal to be inaccurate and not supported by the lower court record. For instance, the Appellant alleged that the trial court entered a final judgment at the interlocutory stage as opposed to having the matter listed for formal proof hearing. My perusal of the proceedings before the lower court reveals that indeed, the matter was heard by way of formal proof where the respondent testified and produced documentary evidence before the court delivered the final judgment. 15.Flowing from the foregoing, I do hereby find and hold that the appeal herein is incompetent and bad in law. Consequently, the appeal is hereby struck out with costs to the respondent. DAVID MBURUJUDGE04/06/2026DATED, SIGNED, DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AND UPLOADED TO THE CASE TRACKING SYSTEM (CTS) THIS 4TH DAY OF JUNE 2026.In the presence of;……………………………………………Court Assistant……………………………………………for the Appellant.…….…………………………………for the Respondent