https://new.kenyalaw.org/akn/ke/judgment/scc/2026/131

Kisaf & Taahlil Logistics v Salim (Commercial Case E1342 of 2025) [2026] SCC 131 (KLR) (11 May 2026) (Ruling) Neutral citation: [2026] SCC 131 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Case E1342 of 2025 TN Mwangeka, J May 11, 2026 Between Kisaf & Taahlil Logistics Claimant and Abdul Salim Respondent Ruling 1.This ruling relates to a Notice of Motion Application dated 20th April 2026 seeking to set aside judgment and decree issued on 5th February 2026 ostensibly for the reason that the Applicant was not properly served of the proceedings herein. 2.Rule 11(4) of the Small Claims Court Act stipulates that default judgement may be set aside if the court is satisfied on the evidence given that the default was inadvertent, the application has a valid defense with a probability of success or there are sufficient grounds to warrant setting aside the default judgment. 3.In James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) the Court of Appeal delivered itself thus: 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. 4.Having considered the rival affidavits, annexures as well as the written submissions by the Claimant/Respondent, the Applicant did not file any, from the onset; I note that the Application is supported by an affidavit Sworn by one Fatuma Omar who alleges to have authority to plead on behalf of the Applicant. I have perused the annexure FO1 which is attacked by the Claimant/Respondent as lacking in form and find that the same contains in substance, evidence of the said deponent’s authority to plead on behalf of the Respondent herein and admit the same in line with Section 32(2) of the Small Claims Court Act and hold the same to be credible. 5.I will now consider whether the judgment entered on 5th February 2026 was regular. From the record, the Respondent was served with full pleadings on 16th December 2025 via his whatsapp line +447774633314. The Applicant contends that the Respondent only came to know of the matter when he was informed that a proclamation notice had been served upon his wife’s premises. Further that his mobile phone had been stolen and he did not have access to whatsapp as at 16th December 2025. I find this untruthful as the Applicant’s annexure FO3 clearly indicates that the date the Respondent’s phone was reported lost/stolen was on 21st December 2025 and it was blacklisted on that very day. 6.The Respondent was therefore well aware of the proceedings against him and proper service was effected. The judgement entered on 5th February 2026 is thus regular. 7.The court’s discretion to set aside ex-parte judgement or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. This is done in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties as reasoned by the court in Landmark Freight Services Limited v Zakhem International Limited [2021] KEHC 3772 (KLR). 8.Presently, the Applicant has not annexed a draft defense for this court to determine whether triable issues exist, which precondition must be meet in order to warrant setting aside of default judgment, as held in Githegi v Kondala Limited-Nestle [2022] KEHC 12577 (KLR). The Applicant has also not demonstrated that the default on his part to enter appearance was inadvertent and neither have any sufficient grounds to warrant setting aside the default judgment been advanced. 9.Ultimately, the court hereby orders as follows:a.The Notice of Motion Application dated 20th April 2026 is dismissed with no orders as to costs.b.Interim stay of execution issued on 23rd March 2026 is hereby lifted.c.The Respondent/Decree Holder is at liberty to proceed and execute. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE…11TH …. DAY OF………MAY………2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;……N/A…. for Claimant;……N/A.… for Respondent C/A Sabina