https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7145

Owiti v Mogaka & another (Suing as the legal representative of the Estate of Hafsa Abdalla - Deceased) (Civil Appeal E1269 of 2023) [2026] KEHC 7145 (KLR) (Civ) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7145 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1269 of 2023 AN Ongeri, J May 22, 2026 Between Mike Okoth Owiti Appellant and Dismas Musiria Mogaka 1st Respondent Tariq Oruta Onyango 2nd Respondent Suing as the legal representative of the Estate of Hafsa Abdalla - Deceased (Being an Appeal from the Judgment of Hon. of Hon. Geoffrey Onsarigo (SPM) in CMCC No. E2887 of 2022 delivered on 28th August, 2023) Judgment 1.The Respondents filed Milimani CMCC No. E2887 of 2022 on behalf of the Estate of Hafsa Abdalla (deceased) who was involved in a fatal road traffic accident on 29/5/2019 along Argwings Kodhek Road. 2.The Respondent’s evidence was that the deceased had alighted from Motor vehicle Registration No. KBS 311D at a bus stop when the bus reversed over the deceased and she sustained fatal injuries. 3.A copy of records was produced showing the Appellant was the registered owner of the said Motor vehicle and the 2nd Defendant the beneficial owner. 4.The trial Court found the Appellant and the 2nd Defendant 100% liable in negligence. 5.The trial Court assessed damages as follows:-i.General damages for pain and suffering – Ksh1,000,000/=ii.Loss of Expectation of Ksh. 100,000/=iii.Loss of Dependency – The deceased was 44 years old earing a salary of Ksh. 20,000/= per month with two children depending on her. The trial Court adopted 15 years as the Multiplier 16 X 12 X 20,000 X 2/3 = 2,500,000/=iv.Special damages - Ksh. 62,760/=Total Ksh. 2,882,760/= 6.The Appellant Mike Owiti has filed this Appeal against the said Judgment on the following grounds:-i.That the Applicant’s basic fundamental rights as enshrined in the Constitution of Kenya 2010 under Article 40 and 27(1) of the Constitution and the right to a fair hearing has been grossly violated and will continue to be violated if the Orders sought herein are not granted immediately.ii.That the Appellant was not given time to file a Third Party Application whereas the evidence adduced confirmed that the Third Party herein namely Xplico Insurance Company Limited had even appointed an advocate under the Law firm of F. Ndar Omollo & Company Advocates to act on behalf of the Appellant who was the insured and who had been sued in the Civil Case No. E2887 of 2022 that was still active and pending before the Chief Magistrate’s Court at Milimani.iii.That the said Third Party Letter was signed by the Head of Claims and Legal Department of Xplico Insurance Company Limited a Ms. Viola Odipo and another Officer from the Legal Department a Ms. Jacklyne Tawai on the 24th day of June 2023.iv.That the said Insurance Company, namely Xplico Insurance Company Limited entered appearance through a Memorandum of Appearance dated 4th July 2023.v.That the Appellant remained in the dark until the last minute even after he had already paid the mandatory excess payment to the Insurer and the Insurer having entered appearance through the Law Firm of F. Ndar Omollo & Associates Advocates who assured him that all was well as he had legal representation.vi.That the Appellant having been reliably informed that the matter was being handled by the Insurer had no choice but to wait for communication from the Law Firm of F. Ndar Omollo & Associates Advocates. However, the advocates appointed by the Insurer failed to show up to the last minute and no one from the Respondents bothered to summon the Appellant directly and instead, the suit was heard as an uncontested suit.vii.That the decision by the learned Magistrate to render a judgment without granting the Appellant a fair chance to be heard was done in bad faith and the same only served to deny the Appellant his Constitutional right to a fair hearing which then leads to the Appellant being denied his Constitutional right to his property since the Appellant is currently staring at the risk of being auctioned.viii.That the Applicant has suffered serious psychological torture, pain and agony as a result of the Judgment entered by the Chief Magistrate Court at Milimani and the Applicant prays that he be given an opportunity to tender his evidence and a fair chance to put up his defence.ix.That the Honourable Court be pleased to hear this Appeal out of time.x.That the failure to lodge an Appeal on time was occasioned by the fact that the first legal counsel who were appointed by the Insurance Company failed to adequately inform/guide the Appellant on the right route to follow after the said Judgment was entered.xi.That the delay to lodge an Appeal on time was occasioned by the fact that the Appellant was never served with the lower court’s proceedings and copy of the said Judgment and he is yet to gain access to the same to date.xii.That the evidence adduced by the Claimant lacked merit, was not credible enough and the same was also far-fetched and ought to have been dismissed in totality.xiii.That the Appellant most humbly prays that this Appeal to be allowed out of time in the best interest of justice. 7.The parties filed written submissions as follows; The appellant submitted that the appeal challenges a default judgment and decree delivered on August 24, 2023, where the respondents, Tariq Oruto Onyango and Dismas Musiria Mogaka, were the plaintiffs. 8.The underlying dispute arose from a motor vehicle accident involving the appellant's vehicle, which was charged against a loan from U&I Microfinance Bank and insured by Xplico Insurance Company Limited. 9.Following the accident and prior to its liquidation, the insurer exercised its right of subrogation and instructed F. Ndar Omollo & Associates Advocates to represent the appellant. 10.Although the appointed firm filed a memorandum of appearance, they negligently failed to file a defence, did not attend the subsequent formal proof hearing, and left the appellant entirely uninformed while the suit proceeded as an uncontested matter. 11.The appellant only learned of the default judgment when auctioneers visited to proclaim his household items. Compounding the situation, the appellant's vehicle was attached in February 2024 despite a twelve-month moratorium issued in December 2023 by statutory managers protecting creditors and policyholders of Xplico Insurance. 12.The appellant argues that his fundamental right to a fair hearing under Article 50(1) of the Constitution of Kenya and the cardinal rules of natural justice, specifically the principle of audi alteram partem, were egregiously violated because he was condemned unheard without notice of the formal proof hearing. 13.He contends that a litigant should not be penalized or driven from the seat of justice due to the blunders, inadvertence, or excusable mistakes of an advocate, especially one appointed by a now-liquidated insurer. 14.To support this position, the submissions rely heavily on established jurisprudence, citing Shah v. Mbogo and CMC Holdings Limited vs. Nzioki to highlight the court's wide and judicious discretion to set aside default judgments to avoid inherent hardship and injustice. 15.They also invoke Branco Arabe Espanol vs. Bank of Uganda to emphasize that the primary purpose of litigation is to investigate and decide disputes on their substantive merits rather than technical lapses. 16.Furthermore, the appellant references the overriding objectives under Sections 1A and 1B of the Civil Procedure Act, asserting that setting aside the judgment and remitting the matter will foster a just, timely, and affordable determination of the real issues in controversy without causing prejudice to the respondents. 17.Consequently, the appellant urged the appellate Court to exercise its unfettered discretion to set aside the default judgment, remit the matter back to the lower court for a full retrial on the merits, and award him the costs of the appeal. 18.The Respondents submitted that they sued as the legal representatives of the estate of the deceased, Hafsa Abdalla. 19.This matter arises before the High Court of Kenya at Nairobi as Civil Appeal No. E1269 of 2023, where Mike Okoth Owiti was the appellant. 20.The appeal stems from a judgment and decree delivered on August 24, 2023, in the Chief Magistrate's Court at Nairobi under case number CMCC No. E2887 of 2022. 21.In that lower court decision, the court ruled in favor of the respondents and awarded them a total sum of Kshs. 2,822,760.00 plus costs and interest. 22.The original claim was instituted following a fatal road traffic accident on May 29, 2019, along Argwings Kodhek road. 23.The respondents claimed that the deceased was standing at a bus stop after alighting from a motor vehicle when the driver or agent of the vehicle negligently reversed without a proper outlook, violently knocking her down and causing fatal injuries. 24.In response to the appellant's thirteen advanced grounds of appeal, the respondents argue that the appeal lacks merit and should be dismissed with costs. 25.They argue that the appellant was fully aware of the lower court suit, having been duly served and having even entered an appearance through the firm of F. Ndar Omollo & Associates Advocates on July 4, 2022. 26.Despite this awareness, the appellant failed to file a defence within the required statutory time limit. 27.Consequently, the trial court properly certified the matter ready for hearing, proceeded with a formal proof hearing, and entered a valid default judgment in an undefended suit. 28.The respondents emphasize that under Order 10 of the Civil Procedure Rules, a plaintiff is fully entitled to proceed ex-parte or request a default judgment if a defendant fails to respond. 29.They maintain that by choosing to ignore the proceedings and sleep on his rights, the appellant automatically extinguished his right to present evidence or cross-examine witnesses. 30.Furthermore, the respondents contest the appellant’s various grounds regarding the alleged mistakes of his insurer’s advocate, asserting that the failure to file a timely defence was deliberate and that no excusable mistake or triable issue has been demonstrated to justify setting aside the judgment. 31.Citing established case law, they argue that judicial discretion to set aside default judgments is meant to prevent injustice from accidental errors, not to assist parties who deliberately evade or delay the cause of justice. 32.They also assert that a default judgment holds the exact same legal validity as a judgment reached after a full trial, meaning the appellant remains obligated to comply with it. 33.Reopening the case at this stage would cause great prejudice to the respondents. 34.As a first appellate court tasked with re-evaluating the evidence, this Court is urged by the respondents to uphold the lower court’s judgment, respect its procedures, and dismiss the appeal entirely. 35.The issues for determination in this appeal are as follows;i.Whether the default judgment entered by the trial court should be set aside given the Appellant's explanation for his non-attendance, andii.Whether the Appellant has demonstrated a defence that raises triable issues. 36.The power of this court to set aside a default judgment is discretionary. 37.It is a discretion that is intended to be exercised 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 evade or obstruct the course of justice. 38.The Court of Appeal in Philip Chemuolo & Another v Augustine Kubenbe [1982-1988] KAR 103 held that "blunders 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 merits" and that "unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs". 39.In the present case, the Appellant's advocate, appointed by his insurer Xplico Insurance Company Limited, entered appearance on 4th July 2022 but negligently failed to file a defence or attend the formal proof hearing. 40.The Appellant has sworn that he remained in the dark about the proceedings, relying on assurances from the appointed advocates that the matter was being handled. 41.He only became aware of the judgment when auctioneers visited to proclaim his household items. 42.The mistake is therefore that of counsel, and the established principle is that a litigant should not be penalized for the blunders of his advocate. 43.The Respondents argue that the Appellant was aware of the suit and failed to file a defence, and that the judgment was regular. 44.However, while the judgment may be regular as the Appellant entered appearance but did not file a defence, the overriding objective of the court under Sections 1A and 1B of the Civil Procedure Act is to facilitate the just, expeditious, proportionate and affordable resolution of disputes. 45.The court exists to decide the rights of the parties on merit, not to impose discipline for procedural lapses. 46.The Appellant ought to be given his day in court. I will, therefore, set aside the default judgment on condition that the Appellant pays thrown-away costs to the Respondents, assessed at Kshs. 40,000/-, to compensate them for the delay and expense occasioned. 47.The Appellant shall file and serve his statement of defence within 14 days of this judgment, failing which the default judgment shall automatically reinstate. 48.The appeal is allowed in those terms with no order as to costs, and the suit is remitted back to the Chief Magistrate's Court at Milimani for hearing on merit. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF MAY, 2026.A. N. ONGERIJUDGEIn the presence of:Mr Karoki for the AppellantMiss Malombo for the RespondentChrispine – Court Assistant