https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12255

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **COMM. CASE NO. E456 OF 2022** **BETWEEN** **MOSES KINUTHIA.……………………………………………………..…PLAINTIFF** **AND** **JOHN MALOGO NDIRITU…………………………..……………….DEFENDANT** **RULING** **Introduction & Background** 1. The Defendant has filed the Notice of Motion dated 29th April 2025 seeking to set aside the summary judgment that was entered on 13th May 2024 against him and that the court grants him leave to file his defence out of time. This application is supported by the Defendant’s affidavit sworn on 29th April 2025 and opposed by the Plaintiff through his replying affidavit sworn on 12th June 2025. The Defendant has also filed a Notice of Motion dated 12th June 2025 seeking to strike out the Defendant’s application as it was made when the court was *functus officio*. This application is opposed by the Defendant through the Grounds of Opposition dated 7th October 2025. 2. The applications were disposed by way of written submissions which I have considered together with the pleadings and I will be making relevant references to the same in my analysis and determination below. **Analysis and Determination** 1. I propose to first deal with the Plaintiff’s application that seeks to strike out the Defendant’s application on grounds that the court is *functus officio* and that after delivering the summary judgment on 13th May 2024, the court's only remaining function is to oversee the execution of the decree and no longer has the jurisdiction to re-open the case or set aside the judgment. 2. The Plaintiff states that the judgment was delivered after a full hearing, where both parties were represented by counsel and had filed submissions and that a judgment granted this way cannot be set aside but only appealed, as the court had previously informed the Defendant. That the Defendant first tried to set aside the judgment in before this court but voluntarily withdrew that application. He then sought leave from the Court of Appeal to file an appeal out of time, which was dismissed by a single judge on 8th November 2024 and he then challenged that dismissal before a full bench of the Court of Appeal, which was also dismissed on 9th May 2025. 3. The Plaintiff contends that the Defendant's present application is an improper attempt to get “a second bite at the cherry” and that the arguments the Defendant is now making about having a defence and being denied a hearing should have been raised during the summary judgment hearing. That because the matter has already been decided and the appeals have failed, the issue is now settled and cannot be re-litigated. The Plaintiff claims the Defendant misled the court to obtain the ex-parte stay orders on 30th May 2025 by falsely claiming the judgment was *ex parte* and he avers that these orders are therefore void and should be set aside. 4. The Plaintiff further states that the Defendant's constant applications are causing unnecessary delay and preventing him from enjoying the fruits of a valid judgment he is owed and as such urges the court to set aside the ex-parte stay orders obtained by the Defendant on 30th May 2025 and strike out his application dated 29th April 2025 with costs. 5. In response, the Defendant states that the Plaintiff's application is misconceived, scandalous, vexatious, and an abuse of the court process and he contends that it is a deliberate attempt to block his right to be heard. The Defendant asserts that this court has unfettered discretion to hear and allow an application to set aside a summary judgment at any time, challenging the Plaintiff's argument that the court is *functus officio* 6. The Defendant claims that his previous application dated 14th May 2024 to set aside the judgment was never prosecuted or heard and because it was not ventilated, the matter is not *res judicata* and the court is not *functus officio* on this issue. The Defendant claims that the Plaintiff's application is intended to deny him his constitutional right to a fair hearing under **Article 50** of the ***Constitution*** and he insists that he should be given an opportunity to defend the case on its merits. The Defendant concludes that the Plaintiff's application lacks merit and should be dismissed with costs to the Defendant. 7. I am inclined to agree with the Defendant that the doctrine of *functus officio* applies to a situation where the Court has pronounced itself on merits, however, it does not command that the moment the court delivers its judgment in a matter then it becomes an abomination to handle all and every other consequent, complementary, supplementary and necessary facilitative processes (see **Mombasa Bricks & Tiles Limited & 5 others v Arvind Shah & 7 others [2018] KEHC 5216 (KLR)].** The court retains power to handle incidental matters like stay of execution, review, settlement of decree and enforcement of a decree and what the court cannot do is re-try the merits of the case or change its decision. The Plaintiff's assertion that the court is *functus officio* is primarily based on the position that the judgment was not *ex parte*. However, the Defendant states that the summary judgment was effectively obtained without a fair hearing to present a defence and I find that the court's jurisdiction may be invoked if it is demonstrated that the judgment was entered in a manner that denied the Defendant a proper opportunity to be heard. 8. Therefore,while the court cannot re-open the judgment to re-evaluate the merits of the case, it does have the jurisdiction to consider an application to set aside a judgment if it is based on grounds that indicate a procedural irregularity or injustice, such as the Defendant's claim of a misadventure by their previous counsel. I will thus proceed to determine the Defendant’s application on whether the summary judgment ought to be set aside and whether he should file its defence out of time. 9. I am in agreement with the Plaintiff’s submission that the legal provisions for setting aside a judgment in default of appearance or defence under **Order 10 Rule 11** of the ***Rules*** that has been invoked by the Defendant are procedurally distinct from the ***Rules*** governing summary judgment under **Order 36.** Once an application for summary judgment has been made under **Order 36 Rule 1** of the ***Rules***, it is upon the Defendant to show the trial court through affidavit or oral evidence that he should have leave to defend the suit as provided under **Order 36 Rule 2** of the ***Rules*** (see **Pwani United Builders Ltd & another v Waterways (Coast) Limited [2021] KEHC 6857 (KLR)].** 10. The court's ruling of 13th May 2024 clearly shows that the Defendant was on notice of the summary judgment application and had the opportunity to respond. Instead of filing a defence or a draft defence to demonstrate triable issues, the Defendant chose to file an application for consolidation. The court specifically noted that the Defendant did not file a defence, he did not annex a draft defence to his application for leave to defend and he did not offer any explanation for failing to file a defence and the court was therefore left with no option but to grant summary judgment. 11. The Defendant now contends that his advocate's negligence caused the default. However, the record shows that the Defendant was actively participating in the proceedings as he filed a Memorandum of Appearance, an application for consolidation and submissions as well. In my view, the failure to attach a draft defence was not a simple oversight but a strategic choice that backfired. The summary judgment was not granted in default of appearance or defence but after the court considered the application and the Defendant's response. As the Plaintiff correctly notes, the judgment was therefore on the merits of the summary judgment application, even though a full trial did not take place. 12. In any event, upon examining the draft defence annexed to the Defendant's supporting affidavit, I find that it raises several substantial triable issues that warrant a full hearing. These include whether the Defendant fully performed his obligations under the Deed of Settlement dated 21st December 2018 as he has provided evidence which he states support the claim of performance. The court will also determine whether the Plaintiff has himself failed to perform his obligations as the Defendant alleges that the Plaintiff has not remitted the sums of Kshs.2,600,000.00/- and Kshs.2,500,000.00/- due under the Deed, and has failed to transfer back the 51% shareholding in *Bush Air Safaris Limited*. Lastly, the court is to determine whether the Plaintiff is attempting to benefit twice from the same transaction as the Defendant argues that the Plaintiff is seeking to claim double payment, which raises serious questions of alleged fraud and abuse of process. 1. I am indeed mindful of the Plaintiff's right to enjoy the fruits of his judgment, however, any inconvenience or loss occasioned upon him can be adequately assuaged by way of costs. **Conclusion and Disposition** 1. For the reasons I have set out above, I allow the Defendant’s application dated 29th April 2025 on the following terms:- 2. **The summary judgment that was entered on 13th May 2024 be and is hereby set aside** 3. **The Defendant be and is hereby granted leave file and serve his draft Statement of Defence within 30 days from the date hereof.** 4. **The matter will be mentioned at a date to be fixed by the court for pre-trial directions and to confirm compliance.** 5. **Costs of both applications shall be in the cause** **DATED SIGNED AND DELIVERED virtually at NAIROBI this 17TH DAY OF JULY 2026** **............................................................................** **J.W.W. MONGARE** **JUDGE** **IN THE PRESENCE OF** 1. N/A for the Plaintiff. 2. Mr. Wilfred Nyamu for the Defendant/Applicant. 3. Amos - Court Assistant