https://new.kenyalaw.org/akn/ke/judgment/scc/2026/207

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT AT CHUKA** **CIVIL CASE NO. E077 OF 2025** **HARUN MURANDI CLAIMANT** **VERSUS** **JULIUS AND PATRICK NYAM………………………………..……………RESPONDENT** **RULING** **Background** The Applicant/Judgment Debtor filed an application dated 10/06/2026 seeking temporary stay of execution of the default judgment entered as against the Respondents/Judgment Creditor and setting aside of the judgment of the Court with leave to file a defence. In support of the orders sought, the Applicant supported the same under the grounds that they were not aware of the proceedings and that they have a defence with high probability of success. In his affidavit in support, he confirmed that the number that was used to effect service belonged to him but that owing to the nature of his work, he does not carry his cellphone to the farm and leaves his mobile phone with his 6-year-old child for entertainment purposes. The Respondent/Decree Holder filed a response vide a replying affidavit sworn on 18/06/2026 denying the allegations as to failure to receive the pleadings and that the same had been admitted. They further raised the issue of jurisdiction of the Court noting the High Court decision that held that the small claims court lacks jurisdiction to hear matters that touch on personal injury claims. The Court has perused all that is before it regarding the instant application in the determination of the application. **Issue for determination** Whether the applicant has satisfied the court as to the conditions of setting aside the ex-parte judgment. The jurisdiction of this Court Analysis Section 1A of the Civil Procedure Act states that:- (1)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. (2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1). (3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court. Section 3A of the Civil Procedure Act on the Saving of inherent powers of court states that:- Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Order 10 Rule 11 of the Civil Procedure Rules states that where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just. Order 10 Rule 11 of the Civil Procedure Rules gives Court the discretion to set aside interlocutory ex-parte judgments. The Court as to the guidelines in exercising discretion is guided by the determination in **Philip Kiptoo Chemwolo and Mumias Sugar Co. Ltd Vs Augustine Kubende [1982] KAR 1036** where the Court held that discretion ought to be exercised judiciously to award justice or hardship caused by excusable mistake or error not to assist the Respondent to obstruct or delay the cause of justice. Section 43 of the Small Claims Court Act states that the Court may on the application of any party to Selling aside of the proceedings set aside any of its orders and make such further orders as it thinks just. Rule 11 of the Small Claims Court Rules provides that the Court has power to enter or set aside default judgment and Sub rule 4 provides for the grounds of such an application to include that the default was inadvertent, there is a valid defence with a probability of success and there are sufficient grounds to warrant setting aside of the judgment, decree or order. To this Court, the Judgment entered was regular as there was service of the pleadings upon the Respondents and the matter proceeded under Section 30 of the Small Claims Court Act. On this ground and in further reliance on the determination in **Mbogoh & Another v. Shah [1968] EA 93** and **Price & Another v Hilder [1986] KLR 95** and **Njagi Kanyunguti & 4 Others v. David Njeru Njogu, CA No. 181 of 1994** as to the guiding principles when exercising the discretion of the court. **Further reliance is placed on the holding in Ryat Trading Co. Limited vs Bank of Baroda and Tetezi House Ltd[2018]eKLR** where it was held that if court sets aside a default judgment, it may also do so on terms. In most cases the defaulting defendant will be ordered to pay the Claimant costs. As to the issue of jurisdiction that has been raised, the Court holds that the Honourable Chief Justice gave directions vide a Gazette notice number 6567 of 8/05/2026 as to how matters previously handled by the Court would proceed and that personal injury claims from road traffic accidents in which judgment had been delivered by this court as at 22/01/2026 shall be deemed concluded and shall not be re-opened or transferred to the Magistrate’s Court, except as may be provided by law. The Court notes that this Court delivered its judgment on 13th November 2025. To this Court, the effect of this directive is that the only source of recourse that the parties have is not for transfer to the magistracy by this Court (the Small Claims Court) but through an application for transfer of a matter which power is vested in the High Court. The Court is guided by Section 18 of the Civil Procedure Act. The Court notes that the judgment in this case was entered regularly and if the Court had jurisdiction to hear and determine the matter, the Court would have exercised its discretion as to throw away costs and following the natural principles of Justice would have allowed the same to proceed before it. However, based on the above analysis, this Court lacks jurisdiction to issue such orders. Therefore, in conclusion, the Court finds the applicants application is unmerited and dismisses the same with costs to the decree holder/Respondent at Court rates. This is the order of this Court. **Dated and delivered at Chuka Law Courts by Hon. Tracy Wanjiku Wachira (RM/ADJ) this 11th day of August 2026.** In the presence of :- Counsel for the Respondent/Decree Holder Court Assistant-Eric Mwenda