Kisingu v Mukiti & 4 others (Commercial Case E031 of 2024) [2026] KEHC 9782 (KLR) (25 June 2026) (Ruling)

REPUBLIC OF KENYA IN THE HICH COURT AT MACHAKOS HIGH COURT COMMERCIAL CASE NO. E031 OF 2024 BERNARD MWEU KISINGU ………………………PLAINTIFF/APPLICANT VERSUS FELISTUS KAVETE MUKITI ……………..1ST DEFENDANT/RESPONDENT VIEWLINE AUCTIONEERS ……….……2ND DEFENDANT/RESPONDENT ABSA BANK KENYA PLC ………………..3RD DEFENDANT/RESPONDENT ABSA BANK INSURANCE AGENCY LT..4TH DEFENDANT/RESPONDENT FIRST ASSURANCE COMPANY LTD ….5TH DEFENDANT/RESPONDENT RULING 1. This ruling is on the Applicant’s Notice of Motion application dated 28th November 2024 seeking that this Court be pleased to stay execution of the judgement entered on 8th July 2024 by the Small Claims Court at Machakos in Claim No. E606 of 2024 together with the decree issued on the 30th October 2024 and any other consequential orders thereto pending hearing and determination of the main application; to set aside the interlocutory judgement entered on 8th July 2024 by the Small Claims at Machakos; and to grant leave to the Applicant to file a Defence, List of Witnesses and Witness Statement out of time. 2. The application is supported by the supporting affidavit of the Applicant sworn on 28th November 2024 and premised on the grounds on the face of the application. 3. The application is opposed by the 1st and 2nd Respondents’ replying affidavit dated 19th March 2025 and the 5th Respondent’s replying affidavit dated 27th March 2025 respectively. **Applicant’s case** 1. The Applicant alleges that he was not served with the Summons to enter appearance, Plaint and Verifying Affidavit dated 28th May 2024 and neither did he know about the existence of the suit until recently before he filed this application. He asserts that he only got to know about the existence of the present suit while in Machakos when he was served with the Warrant of attachment of moveable property in execution of the decree for money dated 30th October 2024 and he instructed the Advocates on record the court filed upon which it was established that an interlocutory judgement had been entered on 8th July 2924 and a decree dated 30th October 2024 had already been extracted despite the said documents having not been served upon the Applicant. The Applicant states that upon perusal of the court file, it was established that there exist several affidavits of service on record sworn by a process server which purports that the Applicant was allegedly served with the Summons to enter appearance, Plaint and Verifying affidavit which is not true. The affidavits are full of falsehoods and it is the Applicant’s humble request to be cross-examined on the contents of the aforesaid affidavits of service for purposes of establishing the truth. 2. That this Court is clothed with discretionary powers to set aside the interlocutory judgement entered by the Small Claims Court at Machakos on 8th July 2024, stay execution of the decree and warrants of attachment of sale of moveable property and to extend and enlarge time to allow the Applicant to file a Defence out of time so as to ensure the ends of justice are met in view of the Applicant having been precluded from being heard under prevailing circumstances. 3. The Applicant states that he is ready and willing to abide by any Court Order as the Court may deem fit. The 1st Respondent in this matter will not suffer any prejudice if the orders sought herein are granted. **1st and 2nd Respondents’ Case** 1. The 1st and 2nd Respondents’ case is that the Applicant’s application lacks merit, is based on falsehoods and is an abuse of the court process. The Applicant was properly served but failed to act in time. His delay is inexcusable and the granting of the application would unfairly prejudice the 1st and 2nd Respondents by delaying enforcement of a valid judgement. The 1st and 2nd Respondent argue that the Applicant’s application is pretty misconceived, spurious, frivolous and vexatious as this Court has no jurisdiction or mandate to interfere with the judgement or proceedings of the Small Claims Court in Machakos SCCC No. 606 of 2024 save in exercise of its appellate jurisdiction. **The 5th Respondent’s case** 1. The 5th Respondent’s case is that the motion is pretty misconceived, spurious, frivolous and vexatious as this court has no jurisdiction or mandate to interfere with the judgment or proceedings of the Small Claims Court in Machakos SCCC No. E606 OF 2024 save in exercise of its appellate jurisdiction. That contrary to the claims by the Applicant, there was no contract of insurance between him and the 5th Respondent over motor vehicle registration no. KCS 917L. The insurance contract was entered between the 5th Respondent and Penny Investments Limited, a limited liability company (hereinafter referred to as "the insured"). The 5th Respondent attached a copy of the policy schedule. There was no insurance contract between the Applicant and the 5th Respondent. The Applicant is non-suited and devoid of locus standi and the suit herein discloses no reasonable cause of action against the 5th Respondent. That it is also notable that the Applicant's engagement with this Court is a forum shopping exercise for favourable orders after the Small Claims Court declined to issue temporary stay orders. That in the end, there is no demonstrated basis upon which the orders sought can be granted by this court. **The 3rd and 4th Respondents’ position** 1. The 3rd and 4th Respondent opted not to participate in the Applicant’s application under determination. **Analysis and Determination** 1. I have considered the Applicant’s Notice of Motion dated 28th November 2024. The same seeks for the following orders that: * **this Court be pleased to stay execution of the judgement entered on 8th July 2024 by the Small Claims at Machakos in Claim No. E606 of 2024 together with the decree issued on the 30th October 2024 and any other consequential orders thereto pending hearing of the main application;** * **this court does set aside the interlocutory judgement entered on 8th July 2024 by the Small Claims at Machakos; and** * **This court does grant leave to the Applicant to file a Defence, List of Witnesses and Witness Statement out of time.** 1. This being an application arising from a matter before the [Small Claims Court Act](https://new.kenyalaw.org/akn/ke/act/2016/2). Section 38 of the [Small Claims Court Act](https://new.kenyalaw.org/akn/ke/act/2016/2) circumscribes the jurisdiction of this Court under Section 38 of the said Act as follows: 2. *A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law.* *2. An appeal from any decision or order referred to in sub section (1) shall be final.* 12. The above provision means that this Court can only intervene if an appeal from the Small Claims Court to this Court is lodged limited to points of law. 1. The Applicant has not disclosed in his application whether he sought to set aside the interlocutory judgement before the trial court and if he did, what was the outcome of the same? The Applicant has also not indicated whether he filed an appeal to this court arising from the said Small Claims Court at Machakos in Claim No. E606 of 2024 or not. 2. Basically, the Applicant is inviting this court to interfere with an interlocutory judgement entered by a Small Claims Court in the absence of a proper appeal having been filed before this court arising from the said Small Claims Claim.I have also established that the Applicant has filed the instant application in **MACHAKOS HIGH COURT COMMERCIAL CASE NO. E031 0F 2024** whereas the CTS shows the application is filed in **MACHAKOS HIGH COURT CIVIL CASE NO. E031 OF 2024.** 3. The Applicant seeks grant of the prayers in the instant application pending hearing and determination of the **main application**. There is no main application that I have come across in this matter and the Applicant has failed to specify any such main application. Even if the court were to allow the instant application there would be nothing pending to be determined. 4. Accordingly, the Applicant’s application dated 28th November 2024 is found to be misplaced, incompetent, misconceived, spurious, frivolous, vexatious and an abuse of the process of this court. This Court has no jurisdiction or mandate to interfere with the judgement or proceedings of the Small Claims Court in Machakos SCCC No. 606 of 2024 save in exercise of its appellate jurisdiction. 5. The upshot is that the Applicant’s application dated 28th November 2024 is hereby dismissed with costs the 1st, 2nd and 5th Respondents assessed at Kshs.10,000/= for each of them. JUDGEMENT DATED & SIGNED AT MACHAKOS THIS 25TH JUNE 2026 **NOEL I. ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 25TH JUNE 2026