https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7119

Kinyanjui & another v Kamau (Civil Appeal E148 of 2025) [2026] KEHC 7119 (KLR) (Civ) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7119 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E148 of 2025 AN Ongeri, J May 22, 2026 Between John Gakumo Kinyanjui 1st Appellant John Gatau Kiarie 2nd Appellant and David Kamau Respondent (Being an appeal from the Ruling of Hon. Wamae E.M. Muindi (Adjudicator/RM) in Nairobi Milimani SCCC NO. E3766 of 2024 delivered on 24/10/2024) Judgment 1.The Respondent in this appeal was the claimant in Nairobi Milimani SCCC No. E 3766 of 2024 where he was seeking material compensation for accident that occurred on 4/8/2021 which caused damage to the Respondent’s motor vehicle registration number KCZ 405B. 2.The Respondent alleged that his motor vehicle was damaged by the Appellant’s motor vehicle registration number KWD686. 3.The Appellant did not file a defence within the prescribed time and the case proceeded to formal proof. 4.In the absence of any rebuttal from the Appellants, the trial court found the Respondent’s evidence unchallenged. 5.The trial court entered judgment in the sum of Ksh 602,063/- together with costs and interests form the date of filing the suit until payment in full. 6.Thereafter, the Appellant made an application dated 21st January 2025 to set aside the exparte judgment which the trial court dismissed. 7.The Appellant has appealed against the said judgment on the following grounds:i.That the learned trial adjudicator erred and misdirected herself by dismissing the Appellant’s application dated 21st January 2025 despite the failure to enter appearance and file a defence not being deliberate;ii.That the learned trial adjudicator erred in law in the exercise of her discretion by failing to uphold the fundamental principle of natural justice that legal disputes should be determined on merits and that laspes ought not necessarily debar a litigant from pursuing his rights to be heard on merit.iii.That the learned trial adjudicator erred in law by failing to uphold the principle that it would be unjust and indeed a miscarriage of justice to deny a party who has expressed the desire to be heard the opportunity of prosecuting his case.iv.That the learned adjudicator erred in law and fact in failing to consider the submissions made before her on behalf of the Appellants herein.v.That the learned adjudicator erred in law and fact in failing to find that the Appellants had made a proper case for setting aside of the judgment against them.vi.That in all circumstances of the case, the findings of the learned trial adjudicator are unsupportable in law or on the basis of the evidence adduced. 8.The parties filed written submissions as follows: the appellant submitted that failure to enter appearance and file a defence was occasioned by the inadvertence of the appellants' insurance agents. the mistakes of an insurance agent should not be visited upon an innocent client. 9.The appellants argued that they were driven away from the seat of justice without affording them an opportunity to be heard in circumstances where their defence raised fundamental questions. They were denied the chance to challenge the respondent’s claim which party would not have suffered any detriment if the judgement had been set aside. 10.The appellant submitted that the proposed defence by the appellants raises triable issues pertaining to liability which ought to be ventilated by way of the appellants being afforded an opportunity of being heard and in support cited Jomo Kenyatta University of Agriculture and Technology v Musa Ezekiel [2014] eKLR where the court observed that:-“To avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice" 11.The Respondents herein were duly and properly served with summons and pleading and they proceeded to acknowledge the same. They were also served with the notice of entry of judgment as prescribed by law. 12.The Appellant in his Application dated 21/1/2025 stated that after being served with pleadings in the lower court matter, they forwarded the same to its insurance who in turn failed to appoint an advocate on their behalf. It was the duty of the Appellants to attend court and inform court of its predicament but failed to do so and are now feigning implausible reason to set aside judgment. 13.The respondent contended that it is notable that no proof of forwarding the pleadings to the insurance has been provided and thus the same remain allegations. The Appellants therefore did slumber on their rights and as such, the famous maxim of "Equity aids the vigilant, not the indolent" ought to be strictly applied in this case scenario since the Appellants' Advocates acted on the instructions to enter appearance only when the Appellants goods were proclaimed and execution ensued. 14.The respondent further submitted that the Hon. Adjudicator's judgment was a regular judgment. The Appellants was served with summons and the pleadings which he acknowledges service. 15.The Appellants were served with a notice of entry of judgment on the 31/10/2024 and the application to set aside judgment filed on the 22/1/2025 approximately three months after the entry of judgment. 16.It is also notable that the said application was filed after the Appellants were served with a proclamation notices a clear indication that they were not keen on following up with the matter until execution ensued. 17.The Respondent will suffer prejudice if the default judgment is set aside as this Appeal is a calculated move by the Appellant to delay the execution process in favour of the Respondent and such a gross miscarriage of justice. 18.The issue for determination in this appeal are as follows;i.Whether the learned trial adjudicator erred in dismissing the Appellant’s application to set aside the exparte judgment.ii.Whether the Appellants demonstrated sufficient cause to warrant the exercise of the court’s discretion in their favour.iii.Whether the Respondent would suffer prejudice that cannot be compensated by costs. 19.The law governing the setting aside of exparte judgments is well settled. 20.In Shah v Mbogo & Another [1967] EA 116, the court established that the discretion to set aside an exparte judgment is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought to obstruct or delay the cause of justice. 21.In the instant case, the Appellants explained that their failure to enter appearance and file a defence was occasioned by inadvertence on the part of their insurance agents, who failed to appoint an advocate on their behalf. 22.The Appellants forwarded the pleadings to their insurer, but the insurer delayed in taking action. 23.A delay caused by an insurer processing a claim through various departments is not wholly inexcusable, and where an insurer is willing to stand by its insured, that is a good sign even for the Respondent as it demonstrates the ability to settle the decretal sum. 24.The mistake of an agent should not be visited upon an innocent litigant who has acted with reasonable diligence. 25.The proposed defence raises triable issues pertaining to liability, which ought to be ventilated through a full hearing on the merits. 26.The overarching consideration for the court is to do justice to the parties, and where the court is satisfied that there is a defence on merit or a defence that raises triable issues, the court should exercise its inherent power to allow that defence proceed for trial. 27.This court is mindful of the constitutional imperative enshrined in Article 50(1) of the Constitution of Kenya, 2010, which provides that every person has a right to have any dispute determined fairly. 28.The right to be heard is a fundamental pillar of natural justice, in this era of human rights as enshrined in our Constitution, the right to be heard must be zealously safeguarded, and legal disputes should be determined on their merits rather than on technicalities of procedure. 29.The Respondent submitted that he will suffer prejudice if the default judgment is set aside, arguing that the appeal is a calculated move by the Appellant to delay the execution process. 30.However, any prejudice that the Respondent may suffer can be adequately compensated by an award of costs. 31.Moreover, there is no evidence that execution has commenced or that the Respondent will suffer irreparable loss. 32.Accordingly, this appeal is allowed. The ruling of the trial adjudicator delivered on 24th October 2024 dismissing the Appellant’s application dated 21st January 2025 is hereby set aside. 33.The exparte judgment entered in Nairobi Milimani SCCC No. E3766 of 2024 is hereby set aside. 34.The Appellants are granted leave to file and serve their defence within fourteen (14) days of this judgment. 35.The court hereby awards thrown away costs to the Respondent assessed at Kshs. 30,000. 36.The same to be paid before the case starts denovo. 37.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF MAY, 2026.A. N. ONGERIJUDGEIn the presence of:Mr Kabue for the AppellantNo appearance for the RespondentChrispine – Court Assistant