https://new.kenyalaw.org/akn/ke/judgment/scc/2026/65

 REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA SMALL CLAIMS COURT CASE NUMBER: SCCCOMM/E1436/2025 EIID MAGE VS CAROLINE WANJIRU RULING At present is a Notice of Motion Application dated 28th April 2026 seeking to set aside *exparte* proceedings of the 20th of April 2026 to and for the Respondent’s case to be reopened and for them to cross examine the Claimant. The reasons advanced for their non attendance is that the matter was mistakenly misdiarized by the advocate on record for the 28th of April and not the 20th of April. A diary extract of the 28th of April 2026 was filed as support for the application. On their part, the Respondent/Claimant strongly opposes the application stating that the Respondent has not met the threshold for setting aside orders. **Section 43** of the Small Claims Court Act empowers this court to set aside any of its orders and make such further orders as it thinks just. This power is discretionary and is to be used in the interest of justice. From the record, the matter proceeded for hearing on the 20th of April 2026 without the Applicant despite them knowing of the said date as the same was confirmed for hearing on the 8th of April 2026 in the presence of all parties. I am not convinced that both got it wrong as the Respondent would have still logged in on the 20th April 2026, nothing stopped her. For the record, it is not true that the Application was filed on the 28th of April 2026 as I have gone through the CTS portal and the certificate of urgency herein was created as an activity on the 6th of May 2026 no wonder my specification of the date and time of filing of the application in the orders dated 7th May 2026. I attribute the same to a system error. I have gained sight of the authorities relied on by the Respondent in opposition to the application and while I agree with the legal threshold as posited and indeed the Applicant has not presented a valid reason for this court to exercise its discretion. In ***Juliana Chepngeno v Robert Muturi Thiongo 2014 KEHC5233(KLR*)** the court while relying on the Court of Appeal decision in ***Richard Ncharpi Leiyagu v*** ***Independent Electoral Boundaries Commission & 2 others*** on the sanctity of the trial process vis a viz the mistake of an advocate, observed as follows: - *“...The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality.”* Therefore, guided by the principle of natural justice and Article 50(1) of the Constitution as read with Section 3(3)(b) and 43 of the Small Claims Court, this court will allow the Applicant to have her day in court, cross examine the Claimant and prosecute her case so that this Court can determine the Claim on merit. I find no prejudice will result in the Claimant being cross-examined. As such, the Notice of Motion Application dated 28th April 2026 is allowed as follows; 1. The Orders issued 20th April 2026 closing the Respondent’s case are set aside. 2. The Claimant’s case is re-opened for purposes of cross examination of the Claimant by the Respondent and subsequent re-examination. 3. The judgment in this matter is stayed pending full hearing. 4. Hearing to proceed on 4th June 2026. There shall be no adjournments. 5. The Respondent/Claimant shall have costs of Kshs. 2,000/-. # DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……15th …….DAY **OF……MAY……2026** In the presence of; # HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR …Mr. Kamanzi… for Claimant; …Mr. Nyariki… for Respondent C/A Esther SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. THERESA N. MWANGEKA** Mombasa Small Claims Court Small Claims Court Date: 2026-05-15 10:07:38