https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11996

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E019 OF 2026** **KERAI NAVINKUMAR…………………….………………………………..APPELLANT** **VERSUS** **PAUL MURIMI MUGO…………………………..……………………… RESPONDENT** *[Appeal from the Ruling/Orders of Kerugoya Small Claims Court in SCCCOMM E378 of 2025 delivered by Hon. Lisper Gakii Nyaga on 5th February 2026.]* **JUDGMENT** 1. By a Memorandum of Appeal dated 4/3/2026, the appellant appeals from the ruling of the trial court delivered on 5/2/2026 declining an application for setting aside of judgment in default of defence on grounds set out in the Memorandum as follows: *“****MEMORANDUM OF APPEAL*** ***GROUNDS OF APPEAL*** *1. The Trial Magistrate erred in law and in fact in failing to properly exercise judicial discretion in dismissing the Appeilant's application to set aside interlocutory judgment.* *2. The Trial Magistrate failed to appreciate that the non-attendance was occasioned by excusable mistake of counsel who inadvertently misdiarized the hearing date.* *3. The Trial Magistrate erred in law by visiting counsel's mistake upon an innocent litigant.* *4. The Trial Magistrate failed to consider that the draft Defence annexed disclosed triable and arguable issues deserving a full hearing.* *5. The Trial Magistrate failed to consider that no prejudice would be suffered by the Respondent if the application was allowed.* *6. The Trial Magistrate failed to uphold the Appellant's constitutional right to a fair hearing under Article 50(1) of the Constitution.* *7. The Trial Magistrate misdirected himself by elevating procedural technicalities over substantive justice contrary to Article lS9(2)(d) of the Constitution.* *S. The Trial Magistrate failed to appreciate that courts exist to determine disputes on merit rather than shut out litigants.* *9. The Trial Magistrate failed to give adequate reasons for dismissing the* *Appellant's application.* *10. The Trial Magistrate failed to consider the overriding objective of the Civil Procedure Act and Rules.* *l1. The decision was against the weight of evidence presented before the Court.* *12. The Trial Magistrate erred in law and fact in failing to find that the Appellant's explanation was reasonable and plausible.* *Therefore the reliefs sought by the appellant in this suit areas follows* *1. The Appeal be allowed.* *2. The Ruling dismissing the application to set aside interlocutory judgment be set aside.* *3. The interlocutory judgment entered in SCCCOMME 378 OF 2025 be set aside.* *4. The Appellant be granted leave to file Defence out of time.* *5. Costs of this Appeal be awarded to the Appellant.* *DATED THIS 4TH DAY OF MARCH 2026.* *LUCY MUGO AND CO. ADVOCATES for the APPELLANT”* 1. Despite opportunity to file submissions on the appeal granted by the postponement of of the Judgment herein, the appellant has failed to file submissions on the appeal following the unsuccessful application for stay of execution pending appeal. 2. The Court has, however, considered the appeal and the submissions filed by the Respondent herein dated 24/4/2026 and the appellant’s submissions dated2/2/2026 in support of the application for setting aside of judgment before the trial court and the caselaw authorities attached thereto, which are produced as part of the Record of Appeal being *Baraka Apparel EPZ (K) Ltd v Rose Mbula Ojwang t/a Faida 2002 Caterers* Court of Appeal civil appeal no. 280 of 2005; *Mavji Devji & Co Ltd v Ruaha Concrete Co. Ltd* (2009) eKLR; *Tree Shade Motors Ltd v DT Dobie and Company (K) Ltd and another* Court of Appeal civil appeal no. 38 of 1998; *Philip Keiptoo Chemwolo & Another v. Augustine Kubende* Court of Appeal civil appeal no. 103 of 1984; *Richard Ncharpi Leiyagu v IEBC and 2 Others* Court of Appeal civil appeal no. 18 of 2013. **Issue for determination** 1. Whether the appellate court will interfere with the trial court’s discretion in refusal to set aside the default judgment. **Determination** 1. The trial court had discretion to grant or refuse the setting aside of default judgment under Order 10 rule 11 of the Civil Procedure Rules. The principles for exercise of the discretion to set aside are set out in the leading case of ***Shah v. Mbogo*** (1967) EA 116 per Harris J. as follows: *“This discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”* 1. As regards an appeal from the exercise of such discretion, this Court as appellate court may only interfere on the principles set out in ***Mbogo v Shah*** (1968) EA 93 as follows: *“[A] Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”* 1. Even if the principle of mistake, inadvertence or accident urged by the appellant citing ***Shah v Mbogo*** (1967) EA 116 and ***Patel v. EA Cargo Handling Services Ltd.*** [1974] EA 75, on the facts of this case, the mistake in diarizing the next court appearance does not explain the failure to file the defence within the time granted by the Court. 2. The judgment in the case was entered after the trial court had given the defendant appellant herein an opportunity to file his defence within the seven days granted by order of 21/7/2025. The failure to file defence within the prescribed time is not explained by the misdiarization of the next court appearance on 3/11/2025 as 5/11/2025, which Counsel for the appellant urges in the application for setting aside. There was no defence to the claim on 3/11/2025 and the trial court was entitled to enter judgment. 3. The distinction between an irregular judgment and a regular judgment as in this case is crucial as restated in ***James Kanyiita Nderitu*** case, as follows: *“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under****Order 10 rule 11****of the****Civil Procedure Rules****, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See****Mbogo & Another v. Shah****(supra),****Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75****,****Chemwolo & Another v. Kubende [1986] KLR 492****and****CMC Holdings v. Nzioki [2004] 1 KLR 173).*** *In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment.”* 1. The Court accepts the decision of the Court of Appeal in ***Tree shade Motor limited v. D.T. Dobie & Company (K) Limited*** [1995-98] 1 EA 324 that *“where a draft defence raises even a single triable issue the defendant must be given leave to defend.”* 2. As was also observed in the case of an application for summary judgment in ***Continental Butchery Limited v Nthiwa*** [1978] KECA 28 (KLR), the Court is entitled to enter judgment where it considers that the defences offered is sham, as follows: ***“With a view to eliminate delays in the administration of justice which would keep litigants out of their just dues or enjoyment of their property the court is empowered in an appropriate suit to enter judgment for the claim of plaintiff under the summary procedure provided by order 35 subject to there being no bona fide triable issue which would entitle a defendant to leave to defend. If a bona fide triable issue is raised the defendant must be given unconditional leave to defend but not so in a case in which the court feels justified in thinking that the defences raised are a sham.*** *This would be in accord with the well-known words of Jessel MR and the Lord Chancellor (Halsbury), spoken respectively in Anglo – Italian Bank v Wells, 38 L T at page 201, and in Jacobs v Booths Distillery Company, 85 LT Reports at 262, as follows:-* *Jessel, MR.:* *“When the judge is satisfied that not only there is no defence but no fairly arguable point to be argued on behalf of the defendant it is his duty to give judgment for the plaintiff.* *Lord Halsbury:* *People do not seem to understand that the effect of OXIV (the equivalent of our Order 35) is, that, upon the allegation of the one side or other, a man is not to be permitted to defend himself in a court, that his rights are not to be litigated at all.”* *Or, on our home plane, in the words of Newbold, P, in Zola and Another v Ralli Brothers Limited and Another, [1969] EA 691 at p 694 that –* *“Order 35 is intended to enable a plaintiff with a liquidated claim, to which there is clearly no good defence, to obtain a quick and summary judgment without being unnecessarily kept from what is due to him by the delaying tactics of the defendant.”* *With respect, the foregoing was perhaps re-echoing in a different language the following words of Lord Halsbury in Jacobs v Booths Distillery Company (supra), i.e. :-* *“There are some things too plain for argument; and where there were pleas put in simply for the purpose of delay, which only added to the expense, and where it was not in aid of justice that such things should continue, Order XIV was intended to put an end to that state of things, and to prevent sham defences from defeating the rights of parties by delay, and at the same time causing great loss to plaintiffs who were endeavouring to enforce their rights.””* The same principles would apply in consideration of a draft defence in an application for setting aside of judgment in default of defence. 1. On the merits of the case, the draft defence, the Response to the Statement of Claim herein, which was attached to the application for setting aside of judgment before the trial court does not raise an issue craving to be heard as to the dispute between the parties as to the supply of goods the claim to payment for which the claimant pleaded as follows: *“****STATEMENT BY PAUL MIJRIMI MUGO*** *I am the above named person the claimant herein and 1 wish to slate as follows:* *1. That I trade under the name of Kaguyu ventures where I am in the business of selling building materials.* *2. That on diverse dates between 4th November 2024 and 6th December 2024. I supplied to the respondent building materials comprised of sand, building stones. ballast and hard core worth Kshs.384,965/= .* *3. That the respondent only paid me a slim of Kshs.100,000/= leaving a balance of Kshs.284,965/=* *4. That despite the fact that 1 issued the respondent with delivery notes which were duly signed by his agent, the respondent completely refused and/or declined to clear the outstanding balance or Kshs.284~965/=* *5. That further, I instructed my advocate on record to send a demand and notice or intention to sue letter to the respondent but he remained adamant and/of refused to comply necessitating the filing of this suit.* *6. That my claim against the respondent is for payment of Kshs.284,965/= plus interests and costs of this suit.* *7. That is all I wish to state now.* *Dated at Kcrugoya this 2nd day of October 2025.* *PAUL MURIMI MUGO* *THE CLAIMANT”* 1. The Response in defence merely raises a general denial not addressed to the claim of balances on payment for deliveries by the claimant but conceding to have bought materials from on a particular date 14/12/20224 and claiming to thereafter have bought materials from another supplier as follows: *“****If the response is in denial of the whole or part of the claim. Give reasons why the claim is denied (explain briefly):*** *1. That on 14th December, 2024 the Respondent bought construction materials from he claimant and paid via M-pesa.* ***(attached hereto is a copy of M-pesa statement)*** *2. That the Respondent has since then never ordered anything from the claimant.* *3. That the delivery notes do not bear the Respondent's name, order number or invoice number to show that He ordered.* *4. That the delivery notes attached in the claimant's List of documents were not signed by the Respondent neither were they signed by a person authorized by the Respondent.* *5. That the claimant sent invoices to the respondent which are not dated or even addressed to the Respondent* ***(attached hereto are copies of the said invoices)*** ***6.*** *That I purchased construction materials from* ***MERCURY TRANSPORTERS COMPANY (attached here are copies of invoices and delivery notes from the said company showing my purchases)****”* 1. The allegation of purchase from other suppliers is immaterial. What is material would be an answer to the claim as to balance of payment for deliveries claimed by the Claimant/respondent herein or denial that the deliveries alleged in the delivery notes were ever made to the appellant. All the deliveries are shown to have received by one James Munene and the claimant has asserted that the deliveries were received by the Appellant’s agent. There is no denial that the said James Mune was the appellant’s agent. Paragraph 4 of the of the Response ***“that the delivery notes attached in the Claimant’s List of documents were not signed by the Respondent neither were they signed by a person authorized by the Respondent”*** does not deny that the deliveries were made and payment therefore made leaving a balance the subject of the statement of claim. 2. The Court would, consequently find that there are no triable issues that warrant the grant of the application for setting aside of the judgment which was regularly entered upon failure of the defendant to file a defence. 3. It is trite that a party who fails to comply with the procedural rules as to hearing cannot complain of lack of fair hearing. See ***James Kanyiita Nderitu & another v Marios Philotas Ghikas & another*** [2016] KECA 470 (KLR) and ***Law Society of Kenya v. Centre for Human Rights & Democracy & 13 others*** (2014) eKLR cited by the Respondent in his submissions before this court. 4. The strict timelines of litigation under the Small Claims Court Act dictated expeditious filing of response and hearing of the dispute herein. The appellant who was the respondent in the trial court had failed to file a Response within the 15 days permitted under section 25 of the Act and the court had granted him seven days to file his response which he also failed to do. The trial court had a discretion under Rule 11 (1) of the ***Small Claims Court Rules,*** which provides as follows: ***“11. Power of court to enter or set aside default judgment*** 1. *Where a respondent fails to file a response to the claim within the time specified in these Rules or within such additional time as the Court may have allowed, the Court shall, on the written request of the claimant, enter default judgment and issue a decree in favour of the claimant.”.* 2. This Court respectfully notes the decision in ***Obiero v Severin & another*** (Civil Appeal E201 of 2023) [2025] KEHC 2724 (KLR) (13 March 2025) (Judgment) cited by the respondents in his Submissions where the Court (Mwamuye, J.) observed that - *“7. The scale of justice must tip towards diligence and expedition. In Shah v Mbogo [1967] EA 116, the Court opined that discretion is meant to prevent injustice—not to perpetuate delay. The Respondents, by their lack of diligence, have lost any equitable basis for relief. The scales of justice cannot be tilted to accommodate procedural lethargy.”.* 1. The appellant herein failed to file a defence within the prescribed time; there is no triable issue in the draft defence; and the mistake of misdiarization by Counsel of the return date does not aid the quest for setting aside of the regular judgment entered by the trial court. 2. In its ruling subject of this appeal the trial court ruled that: *“16. Briefly, the above cited authorities reveal the law as established on setting aside an exparte judgement. I have already found that the service upon the Respondent was proper and his failure to enter appearance was deliberate. I have perused the draft response and the Respondent has merely denied the claim and no triable issue has been presented. It is undisputed that the claim was served upon the Respondent hence the reason on 21/10/2025, his counsel sought time to respond and 7 days were granted. On 03/11/2025, no response had ben filed and the Respondent was absent. Had the Respondent been acting in good faith, the response would have been filed by 28/1 0/2025. The Respondent did not also avail any extract of their advocates' diary to prove that the matter was diarized for 05/11/2025 as alleged.* *17. At this point this court finds the applicant guilty of indolence . It was unnecessary that the Applicant had to wait until 05/11/2025 for filing hen he had been granted time on 21/10/2025 to do so within 7days. Further, this being a small claims courl matter, the same was to be concluded within 60days.* *Default judgment was entered on 03/11/2025 which was over 30days into the matter. At such p oint in time, the Respondent/Applicant must be held accountable for dragging the matter. In any event, the Applicant has a legal recourse againsl their advocates, if at all they are to blame as alluded to in the subject application.* *18. In a nutshell, it follows that the Respondent/Applicant has proved to be indolent and has not sastisfied the parameters under* ***Rule 11 (4) of the Small Claims Court Rules*** *to warrant a grant of the orders sought herein. Guided by the timelines of this court. the delay by the Applicant was clearly deliberate, the draft response filed does nol raise any triable issue whatsoever and is a mere denial and hence no sufficient ground has been raised to warrant setting aside of the default judgment herein.* *19. The Respondent/Applicant's application dated 03/11/2025 therefore fails in its entirety and this court finds that the Claimant is entitled to costs thereof. This court awards the Claimant/Respondent costs of the application and proceeds to assess the same at an all-inclusive sum of Kshs. 5,000/= in line with Section 33 (1) of the Small Claims Court Act, Rule 37 of the Small Claims Court Rules and the Second Schedule thereof noting that the Claimant is represented by counsel and further the time taken in hearing the application and the attendances thereto.* *20. The upshot is lhallhe Respondent's/Applicant's application dated 03/11/2025 is unmerited and is hereby dismissed with all-inclusive costs of Kshs. 5,000/= to the Claimant/Respondent.”* 1. The trial court had discretion under section 43 of the Small Claims Act and Rule 11 (4) of the Small Claims Court Rules to set aside the default judgment. Its decision in exercise of this discretion is within the law. This Court does not find on the principles of appellate interference with the discretion of the trial court set out in ***Mbogo v. Shah,*** supra, find any warrant to interfere with the trial court’s decision. The appeal will be declined. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds that the appeal is without merit, and it is dismissed. 2. The appellant shall pay the costs of the appeal to the respondent. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Mwanzia for the Appellant. Ms Waweru for the Respondent