https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11592

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEAL NO. E818 OF 2022** **BETWEEN** **TABITHA MAKOYA-------------------------------APPELLANT/APPLICANT** **VERSUS** **KILONZO MUSYOKA AND STEPHEN SYANDA MUSYOKA** **(Both sued as administrators of the estate of the late ANGELINE MUMBE SYAND) -----------------------------------------------------------1ST RESPONDENT** **SOUTH NYANZA SUGAR CO. LIMITED ---------------2ND RESPONDENT** ***(being an appeal from the Ruling of A.N. Makau delivered on 11th October 2022 in Milimani MCCC No. 8312 of 2018; Kilonzo Musyoka & Anor Versus Tabitha Mokaya Moraa & Anor)*** **JUDGMENT** **INTRODUCTION** 1. The judgment in this matter has taken time to deliver not out of a deliberate act on the part of the court but due to circumstances beyond the control of the court. The file had been misplaced following the change of court assistants to this court and it was not until the 26th February 2026 when the same was brought to the attention of the court by the current Court Assistance. The delay highly regretted and the court appreciates counsel for both parties for their patience and indulgence. 2. The appellant in this matter is aggrieved by the Ruling of the learned Honorable magistrate delivered on 11th October 2022 declining to set aside an ex parte judgment. 3. The appellant has set forth the following grounds of appeal ;- 4. **THAT** the learned magistrate erred in law and in fact in failing to consider that the appellant's advocate on record had a duty of care and communication to the appellant and only learnt of the ex-parte judgment when the 1st respondent sought to execute the decree against its clients. 5. **THAT** the learned magistrate erred in law and in fact by failing to consider that the mistakes of an advocate should not be met upon the client. 6. **THAT** the learned magistrate erred in law and fact by failing to consider that the appellant was yet again being condemned unheard by dismissing the prayer to attend and participate in the proceedings. 7. **THAT** the learned magistrate erred in law and in fact by failing to suspend the decree issued as the same is irregular and illegal for double awarding the claim both under loss of dependency and loss of expectation of life and hence the judgment entered against the Defendant/Applicant herein together with all the consequential orders ought to be set aside ex debito justitiae. 8. **THAT** there would be no prejudice suffered by the respondent if the appellant is allowed to defend the suit on its merit. 9. **THAT** all in all, the Learned magistrate so mis-affected herself on matters of both law and fact which has occasioned the appellant grievous miscarriage of justice. 10. The appeal raises the following issues for determination;- 11. Whether the failure by an advocate to communicate with his client to appear and defend a matter should lead to the automatic setting aside of an ex-parte judgment. 12. Whether the failure to set aside the ex-parte judgment amounts to condemning a party unheard 13. Whether it is open for a party challenging a decision declining to set aside an exparte judgment can challenge the substantive merits of the ex-judgment. 14. Who should bear the costs of the appeal. 15. The parties in this matter agreed to dispose of this matter by way of written submissions and they all filed their respective submissions which this court has duly considered. **APPELLANT’S CASE** 1. The Appellant submitted that being the 2nd Defendant in the trial court, she entered appearance and filed a Statement of Defence. 2. In the statement of defense an objection to the territorial jurisdiction of the trial court was raised on the basis that the cause of action arose in Miwani and that the Defendants were not ordinarily resident in Nairobi, with no proof to that effect. 3. The appellant further submitted that the Grant Ad Litem was obtained in Thika Chief Magistrate’s Court on 6th February 2018. 4. The went on to submit that there was no proper service of hearing notices upon her advocate, thereby denying her the right to be heard. The record shows that the matter was scheduled for hearing on 2nd September 2020, having been fixed ex parte on 20th July 2020, with alleged service on 21st and 24th August 2020. 5. The Appellant contends that such service, being effected less than eight days to the hearing date and without any evidence of invitation to fix the hearing date, was irregular. 6. Further, the affidavit of service does not indicate the time of service, and the alleged service having been effected on a Friday ought to be interpreted in favour of the Appellant. The record further reveals that on 12th March 2022, the trial magistrate declined to proceed with the matter on account of lack of proof of service for at least ten days. 7. Further, according to the appellant when the matter was fixed for hearing on 10th February 2021, despite directions that the Appellant’s counsel be served, there is no affidavit of service on record. The same position obtains for the mention date of 12th March 2021 where there is no evidence of service. 8. The Appellant therefore maintains that there was no proper service throughout the proceedings, and her right to a fair hearing was consequently violated. 9. The Appellant further submits that judgment was delivered without notice to her or her advocate, contrary to Order 21 Rule 1 of the Civil Procedure Rules, which requires that notice of delivery of judgment be given where judgment is not delivered immediately upon conclusion of the hearing. 10. The Appellant argues that he remained a party to the proceedings and was entitled to such notice notwithstanding her absence. 11. The Appellant relied on **NGOSO GENERAL STORE LTD JACOB GICHUNGE CIVIL APPEAL NO 248 OF 2001 [2005] eKLR** where the court held that;- “The law under Order 20 r 1 is explicit in terms and mandatory in tone. A judgment which is delivered ex tempore must be delivered on a subsequent date only upon notice being given to all parties or their advocates…. an order…. directing the party in attendance to inform the other side does not cure the fragrant breach of a mandatory procedural rule which accords with fundamental rules of natural justice and the right to be heard which our Constitution safeguards.” 12. The appellant therefore submitted that any judgment delivered without notice is a nullity and ought to be set aside ex debito justitiae. The Appellant further relies on **Henry Wafula Khaemba V Nzoia Sugar Company Ltd [2013] eKLR** where it was stated; “I must emphasize here that the requirement for Notice of delivery of judgement is a substantial matter of fair hearing and which accords with the rules of natural justice. Therefore, any judgment for which notice of delivery of judgment is required but none is given, is irregular and should be set aside ex debito justitiae.” 13. The Appellant further relied on **Mathews v Masika (Civil Case E180 of 2022) [2022] KEHC 12194 (KLR)** and **James Kanyita Nderitu and another v Marios Philotas Ghikas & another MSA CA Civil Appeal No. 6 of 2015 [2016] eKLR**, where the court held that where there is no service or the judgment is irregular, the court must set aside the judgment as a matter of right. Similarly, in **Mwala v Kenya Bureau of Standards EALR [2001] 1 EA 148** the court stated; “[A] distinction is to be drawn between a regular and irregular ex-parte judgment. Where the judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justiciae for a court should never countenance an irregular judgment on its record.” 14. The Appellant submitted further that the trial court erred in failing to properly exercise its discretion in declining to set aside the ex parte judgment. The appellant cited the case of **Mureithi Charles & another v Jacob Atina Nyagesuka [2022] eKLR** which cited **CMC Holdings Ltd vs. Nzioki [2004] KLR 173**, where it was held; “In an application for setting aside ex parte judgement, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error…” 15. The Appellant submitted that the trial court failed to consider the explanation that the matter had been handed over to the insurer who appointed counsel, and that the Appellant was unaware of the proceedings. Further, the trial court failed to consider whether the Defence on record raised triable issues, including the question of jurisdiction. 16. According to the appellant, the Defence raised substantive triable issues which were not considered. In particular, the issue of territorial jurisdiction was not addressed. 17. Further, the Plaintiff’s own witness testified that the tractor had only one headlight, that the corner was sharp, that both vehicles were on the wrong side, and that the bus was moving very fast, and further confirmed that at first, he thought the tractor was a motorcycle. 18. The Appellant contends that these admissions point to contributory negligence and that the imposition of 100% liability on the Appellant in her absence amounted to injustice. 19. The Appellant further relies on **Philip Chemowolo & Another –vs- Augustine Kubede [1982-88] KAR 103** where it was held; “Blunder will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit…” 20. Further reliance was placed on **Murai vs. Wainaina (No. 4) [1982] KLR 38** where it was held; “A mistake is a mistake. It is no less a mistake because it is unfortunate slip…” 21. The Appellant also relied on **Patel v East Africa Cargo Handling Services [1974] EA 75** and **Tree Shade Motors Ltd v DT Dobie & Another [1995-1998] 1EA 324**, which affirmed that the court has wide discretion to set aside ex parte judgment, particularly where the defence raises triable issues. 22. The appellant maintained that there was no proper service of hearing notices and no notice of delivery of judgment, rendering the judgment irregular and a nullity. The trial court failed to properly exercise its discretion and failed to consider the triable issues raised in the Defence. 23. The Appellant therefore urged this court to allow the appeal and the impugned judgment be set aside. **1ST RESPONDENTS CASE** 1. The 1st respondent opposed the appeal and sought to have it struck out or dismissed on grounds that it constitutes an abuse of the court process, offends the doctrine of election, amounts to duplication of forum, anticipates the outcome of litigation, and is barred by the principles of res judicata, issue estoppel, and the Overriding Objectives. 2. According to the 1st Respondent the appellant instituted Nairobi CMCC No. E701 of 2023 seeking to recover a sum of Kshs. 3,000,000/= from her insurer, being part of the award made against her in the present proceedings. It is contended that by so doing, the appellant is actively enforcing the decree arising from the impugned judgment while simultaneously pursuing an appeal to set aside the same decree, thereby engaging in conduct that amounts to approbating and reprobating. 3. Th appellant obtained a judgment against her insurer for Kshs. 3,000,000/=, being a declaratory judgment that the insurer is bound to satisfy the said sum as the policy limit, arising from Nairobi CMCC No. 8312 of 2018, which is the subject of the present appeal. 4. The 1st respondent further submitted that a litigant cannot, in law and equity, pursue an appeal against a decision while at the same time deriving benefit from and enforcing that very decision. 5. In support of that position, reliance was placed on the authority of **R V Instistute of CPS Kenya**, wherein it was held that a party who has benefited from certain by-laws could not subsequently challenge them, as such conduct amounted to approbating and reprobating, which the Court found unacceptable. The Court in that case cited **Evans V Bartlam (1937) 2 ALL E.R 649, page 652 per Lord Russel of Killowen**, where it was stated: ***"The doctrine of approbation and reprobation requires for its foundation inconsistency of conduct, as where a man, having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit".*** 1. The appellant having obtained a favorable judgment against her insurer based on the very decree she now challenges, cannot be permitted to both benefit from and impugn the same judgment. 2. The appellant according to the 1st respondent is basically blowing hot and cold thus this court should not be inclined to find in her favor. 3. The 1st Respondent further submitted that, such conduct amounts to a clear abuse of the court process, akin to gambling with the judicial system. The doctrine of approbation and reprobation aligns with the doctrine of election under both Scottish and English law, as well as jurisprudence from other jurisdictions. 4. The 1st respondent further relied on **Behan&Okero Advocates V National Bank of Kenya (2007) eKLR**, where the Court of Appeal applied the same principle, drawing from **Sonko V Patel (1955) 22 EA CA 23**, and held that a party is estopped by their conduct from approving an order and later disapproving it. The appellant is thus estopped from simultaneously enforcing and appealing the same decision. 5. The 1st respondent urged this Court not to entertain the present appeal in light of the appellant’s contradictory conduct, which constitutes an abuse of the court process. 6. The respondents urged the Court to invoke its inherent jurisdiction, as well as its powers under Sections 1A, 1B, and 3A of the Civil Procedure Act, to strike out or dismiss the appeal in the interest of justice. 7. In support of that proposition, reliance was placed on the case of **Hesbon Amata&Another V David Maina Waithaka Nairobi HCCA No.213 of 2009**, where the Court affirmed its discretion to dismiss an appeal to prevent injustice or abuse of process. 8. The Court in that case echoed the sentiments of Law J.A in **Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd (1989) EA 696**, to the effect that the provisions of the Civil Procedure Rules do not limit the Court’s inherent jurisdiction to dismiss suits where necessary to prevent injustice or abuse of the court process. 9. The 1st respondent therefore urged this court to find that the instant appeal amounts to an abuse of the process of the court thus fit for striking out and or dismissal. **2ND RESPONDENT’S CASE** 1. The appeal is premised on the Memorandum of Appeal dated 14th October 2022 and amended on 9th February 2024. 2. The 2nd Respondent submitted that the 1st Respondents, as administrators of the estate of Angelinah Mumbe Syanda (deceased), instituted Milimani CMCC No. 8312 of 2018 – *Kilonzo Musyoka & Stephen Syanda Musyoka vs Tabitha Mokaya Moraa & Sony Nyanza Sugar Company*, seeking general damages for pain and suffering, loss of expectation of life, lost years, and loss of dependency, together with special damages of Kshs. 61,870/=, costs, and interest. 3. The Appellant entered appearance and filed a Statement of Defence through the firm of Okong’o Wandago & Company Advocates. 4. However, at the hearing of the suit, neither the Appellant nor her advocates were present in court despite having been duly served with the hearing notice. 5. The matter proceeded for hearing, culminating in a judgment in favour of the 1st Respondents against the Appellant, while the suit against the 2nd Defendant was dismissed. 6. Upon failure by the Appellant to satisfy the decretal sum, the 1st Respondents initiated garnishee proceedings, and it was only upon service of the garnishee order nisi that the Appellant moved the court seeking to set aside the judgment. The application was dismissed, hence the present appeal. 7. The 2nd Respondent submits that the appeal lacks merit. It is contended that the Appellant attributes her failure to attend court to her advocates but has not demonstrated any steps taken to follow up the matter. 8. While the Appellant avers that she forwarded the suit documents to her insurers, who appointed counsel, there is no evidence that she made any effort thereafter to monitor the progress of the case. 9. The 2nd respondent went on to submit that the appellant only took action upon commencement of execution proceedings. 10. The 2nd Respondent maintains that it is settled law that a suit belongs to the litigant and not the advocate, and that a litigant has a duty to follow up on their case. The 2nd Respondent relied on **Julius Odhiambo Oduor v Chairman, Secretary, Auditor & Organisers of Nyikwa Ramogi Welfare [2019] eKLR**, which cited **Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002**, where it was held; *“Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocates failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case...”* 11. The 2nd Respondent further relied on **Latifa M. Ramadhan v Omar M. Ramadhan & another [2021] eKLR**, where the court stated; *“A court cannot be recruited to aid an indolent litigant. It was the duty of the litigant to move her lawyer to prosecute her case…”* 12. The 2nd Respondent submitted that the appellant was indolent and failed to take any steps to ensure her defence was prosecuted. In support of this position, reliance was placed on **Pius Mulwa Masai (Suing as legal representative of the estate of Masai Kabolelya) v Nzembi Musili & 5 others [2021] eKLR**, which cited **Edney Adaka Ismail vs Equity Bank Limited [2014] eKLR**, where it was held; *“It is not enough for a party to simply blame the advocate but must show tangible steps taken by him in following up his matter”.* 13. The same position is reiterated in **Republic vs Teachers Service Commisison, Exparte PATRICK M NJUGUNA [2013] e KLR**, citing **SAVINGS and LOANS LIMITED vs. SUSAN WANJIRU MURITU HCC NO. 397 OF 2002, NAIROBI (MILLIMANI)**, where the court emphasized that not every mistake of counsel warrants setting aside of orders and that a litigant must demonstrate diligence in following up their case. The appellant in the instant case did not demonstrate the effort she made if at all. 14. The 2nd Respondent further submitted that the Appellant had the opportunity to participate in the proceedings, having been served with summons to enter appearance and having filed a Defence. However, she failed to attend court and did not challenge the judgment through an appeal on merits, particularly on the alleged issue of double compensation, but instead sought to set aside the judgment on grounds of mistake of counsel. It was contended that the appellant in intiating the instant appeal was uncertain as to whether the appeal is intended to challenge the judgment itself or the ruling declining to set aside the judgment, and any attempt to challenge the judgment is out of time and should be disregarded. 15. On the issue of jurisdiction, the 2nd Respondent submitted that the same was not raised in the Defence or in the application before the trial court and is therefore an afterthought. 16. In any event, it was contended that the appellant carried on business in Nairobi through the operation of a passenger service vehicle, and the 2nd Respondent equally conducted business in Nairobi, thereby justifying the jurisdiction of the trial court. 17. The 2nd Respondent further submitted that the appellant had not demonstrated any prejudice she would suffer if the decretal sum is satisfied, particularly in light of the existence of an insurance policy, and that the appellant had already pursued remedies against her insurers and advocates in a separate suit. 18. According to the 2nd respondent the 1st Respondents had suffered prolonged prejudice, having awaited compensation since the accident occurred on 3rd June 2016, with the suit having been filed in September 2018. 19. The application to set aside the judgment was made approximately one year after judgment and only after execution proceedings had commenced, demonstrating lack of diligence on the part of the Appellant. 20. In the 2nd respondents view, allowing the appeal would occasion prejudice to the Respondents, as it would necessitate a retrial. The 2nd Respondent’s witness who testified has since left employment and cannot be traced, thereby compromising the Respondent’s ability to present its case. 21. The 2nd respondent relied on **Latifa M. Ramadhan v Omar M. Ramadhan & another [2021] eKLR (SUPRA)** citing **IVITA V KYUMBU 1984 KLR 441**, where it was held; *“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay…”* 22. The 2nd Respondent further submitted that the delay herein was inordinate and inexcusable, and that justice would not be served by reopening the matter. 23. On costs, the 2nd Respondent submits that costs follow the event thus the appellant should bear the costs of the appeal. 24. The 2nd Respondent submitted that the matter was heard and determined by a court of competent jurisdiction and that the Appellant, having failed to participate in the proceedings without sufficient cause, the appellant is not entitled to the orders sought. 25. The Court is therefore urged to dismiss the appeal with costs to the 1st and 2nd Respondents. **ANALYSIS AND DETERMINATION** 1. Theappellantmoved this court to challenge the Ruling declining to set aside the ex parte judgement. 2. The court in considering an appeal of that nature is being called upon to inquire into the exercise of judicial discretion by the learned Honorable Magistrate who determined the application. 3. An appellate court cannot interfere with the exercise of judicial discretion lightly. The appellant has to persuade the appellate court that in exercising the judicial, the court misdirected itself on some principles of law applicable to the matter under consideration or failed to take into account some relevant matters or took into account some irrelevant matters leading to a wrong decision in law. See **Mbogo & Another Vs Shah {1968} E.A 93** 4. The appellant in this case has not succinctly set out the errors of law or misapplication of the principles that guide a court in considering the setting aside of an ex parte judgment. 5. The appellant was served with the plaint in this matter and filed a defense to the suit. The appellant did not appear to defend the suit and it does appear from the Ruling by the trial court that the appellant was basically blaming her advocate for failing to defend the suit. 6. It is important to clarify that the fact that a counsel made a mistake in handling their client’s matter, does grant the litigant an automatic right to set aside a judgment that is legally and regularly obtained. 7. If courts were to adopt that as rule, unscrupulous litigants would fail to defend suits as a tactical move to delay a matter knowing that they would automatically set aside proceedings by simply blaming their advocates. 8. The adoption of such a position would also render the provisions of the Civil Procedure allowing courts to enter default judgments otiose. The rules of procedure must count for something in any judicial process. Where a party without a justifiable cause chooses not to participate in proceedings upon notice being served upon the party or his advocate, such a litigant cannot be allowed to deny the successful party of the results of the judgment flowing from those proceedings. 9. The burden of proving that one was not served withthe necessary notices to appear and defend a suit lies on the party seeking to set aside an ex parte judgment. The standard of proof is on a balance of probabilities. If the party seeking to set aside the judgment, does not provide cogent evidence disproving service, the court would not be able to assist such a litigant. 10. The trial court is duty-bound to make a critical judicial inquiry into whether service was proper. The learned Honorable magistrate in this matter undertook the inquiry and found that there was evidence of service thus there was no legal error on the part of the court to justify intervention by this court. As was held in **K-Rep Bank Ltd v Segment Distributors Ltd [2017] eKLR,** an ex parte judgment entered after proper service must be accorded a different treatment from one entered without service. In arriving at the decision, the court stated as follows; ‘Having found that the Summons to Enter Appearance and Plaint were duly served on the Defendant, it follows that the default judgment was regularly entered. And where that is the case, it is trite that the court ought to be slow in setting it aside. In **James Kanyiita Nderitu & Another vs. Marios Philotas Ghikas & Another [2016] eKLR**, the Court of Appeal restated the distinction aforementioned and held that: “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).’ 1. The appellant in this matter was served, entered appearance and filed a statement of defence. Further, the respondents to this court that the appellant acting on the strength of the judgment in issue filed a declaratory suit against his insurers and obtained judgment. 2. It therefore follows that the appellant acknowledges the binding effect of the ex-parte judgment and having relied on the same to proceed against his insurer, he cannot in the same vein be heard to fault the magistrate for declining to set the judgment aside. 3. The appellant as submitted by the respondents is blowing hot and cold. On the one hand he wishes to have this court set aside the very judgment he relied on to sue his own insurer. 4. This court is under duty to protect an innocent litigant such as the 1st Respondent who has through legal means secured a judgment in his favor. 5. The judgment got a stamp of approval from yet another court through action initiated by the appellant. 6. The appellant cannot have his cake and eat it. The appellant must decide whether to challenge the ex-parte judgment on the merits and also make up his mind as to the utilization of the fruits of judgment that he obtained against the insurer on the basis of the impugned judgment. 7. It does appear that the appellant is unable to elect the path to pursue. In the circumstances this court must step in to safeguard the interests of justice. 8. The 1st Respondent should not be denied the fruits of his judgment which the appellant has successfully relied on to obtain a declaratory judgment. 9. In determining this appeal, I must emphasize that judicial discretion is akin to a delicate balancing act, a solemn trust reposed in the courts to ensure justice is not only done but manifestly seen to be done. A party who fails to defend his case cannot blame the successful party or the court and allege that he was condemned unheard. To be heard, one has to appear before court once notified of the date of the hearing. Failure to do so cannot hold the court back from discharging its duty of dispensing justice to the parties before it. 10. The discretion to set aside a judgment is not absolute, nor is it an open cheque to be wielded arbitrarily. An appellate court must be careful not to interfere with the exercise of discretion by a trial court without cause. The Court of Appeal in Mbogo v Shah [1968] EA 93 cautioned against judicial overreach, stating that appellate intervention is warranted where a trial court has misdirected itself or considered extraneous factors. In this case, the Trial Court disregarded established legal precedent and misapplied its discretion, an error this Court cannot overlook. 11. I have not found anything of the like of things that the court of appeal spoke about in **Mbogo Vs Shah.** The court is alive to the requirement of law that discretion must be exercised judicially, not whimsically. The court is not inclined to accept the capricious and whimsical invitation by the appellant to interfere with the decision of the learned Honorable Magistrate. 12. The appellant has not demonstrated a good cause in seeking the intervention of this court. The learned Honorable Magistrate in her Ruling noted that there were numerous affidavits of service filed by the plaintiff counsel to demonstrate service upon the appellant advocate until the suit was heard. The appellant cannot simply hinge her appeal on the position that a litigant should not suffer due to mistakes of counsel. The case belonged to her and she had a duty to ensure her counsel attended to the matter and any failure of her advocate to discharge his or her professional duty to her would be a matter for a different forum. The fact that service was effected on her appointed Counsel was sufficient to lead the court to the conclusion that it arrived at that there was no reason to justify the setting aside of the judgment. 13. The appellant having taken the bold and courageous move of obtaining a declaratory suit against his insurer on the basis of the impugned judgment, the intention ion her must have been to satisfy the decree. 14. The action alone is a quiet admission by the appellant that the judgment was validly obtained and therefore enforceable. 15. In the end this court finds that the appeal by the appellant was preferred in consideration of other factors other than the quest for justice. 16. The appellant appears to have been awoken by the decree and desperately sought to set aside the judgment not because she did not believe in its validity but just as a means of delaying her date with fate. Equity does not aid the indolent. The appellant having filed a defense, it was incumbent upon her to follow up the matter with her advocate and defend the suit. 17. The sanctity of finality in litigation is a hallowed principle, ensuring the wheels of justice do not grind endlessly. The Court in **Gideon Sitelu Konchella v Daima Bank Limited 2013 eKLR** citing the case of **Mobil Kitale Service Limited v Mobil Oil Kenya Limited HCC No. 205 of 1990** (unreported) underscored that judicial processes must not be an avenue for strategic delays. In discussing that, the court stated thus; “It is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose of matters expeditiously” ….“The overriding objective of this Act and the Rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.” 1. The appellant’s actions appear to have been actuated by a desire to delay the finalization of this matter. This court cannot countenance such maneuver by litigants calculated to delay the conclusion of matters. 2. Consequently, this court finds that the appeal has no merit and the same is hereby dismissed with costs to the respondents. 3. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **5th** day of **MAY, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Sankale for the Appellant Kaburu for 1st Respondent Ochieng for 2nd Respondent