https://new.kenyalaw.org/akn/ke/judgment/scc/2026/52

Musyoka v Mwanthi (Claim E236 of 2022) [2026] SCC 52 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] SCC 52 (KLR) Republic of Kenya In the Small Claims Court at Machakos Claim E236 of 2022 AN Ongeri, J June 25, 2026 Between Pius Musyoka Claimant and Mumo Mwanthi Respondent (Being an appeal from the Ruling of HON.. H. THIBARU (ADJ/RM) in MACHAKOS SCCCOM NO.E236 of 2022 delivered on 27/6/2023) Judgment 1.The trial court was called upon to determine an application filed by the respondent on 12th June 2023, seeking to set aside an exparte judgment that had been entered against him on 15th February 2023, and for leave to be granted to defend the suit. 2.The respondent contended that he had not been served with any court documents and was unaware of the proceedings until his arrest on 9th June 2023 during execution of the decree, and he attached a draft defence to support his request to be allowed to contest the claim. 3.The appellant opposed the application, asserting that the respondent had been duly served with all court documents via WhatsApp on a mobile number that the respondent did not dispute belonged to him. 4.In its analysis, the trial court applied the established principles for setting aside exparte judgments, distinguishing between regular and irregular judgments, and cited the authority that an irregular judgment, such as one obtained without proper service, must be set aside as a matter of right rather than as a discretionary exercise. 5.Upon review, the trial court observed that no certificate of service had been filed to prove service of the statement of claim upon the respondent, and the attachments provided by the appellant only evidenced service of mention notices, not the claim itself. 6.Consequently, the trial court was satisfied that the respondent had not been properly served with the statement of claim, rendering the exparte judgment irregular. 7.Having reached that conclusion, the trial court found it unnecessary to consider the other issues, as an irregular judgment must automatically be set aside. 8.The trial court therefore ordered that the judgment entered on 15th February 2023 and all consequential orders be set aside, directed the respondent to file and serve his response and all pretrial documents within fourteen days of the ruling. 9.The trial court ordered the appellant to pay the respondent assessed costs of Kshs. 15,000 before the matter could be set down for hearing, and scheduled the matter for pretrial directions on 15th August 2023. 10.The appellant has appealed against the said Ruling on the following grounds;i.That the Learned trial Magistrate erred in law and in fact in awarding the Respondent throw away costs which lacked any justification or qualification.ii.That the Learned trial Magistrate erred in law and in fact by abusing discretionary powers and consequently failing to act judicially in the circumstances of this case.iii.That the Learned trial Magistrate erred in law and in fact in holding that the Respondent was never aware of the proceedings until he was arrested.iv.That the Learned trial Magistrate erred in law and in fact by failing to follow the doctrine of stare decisis in the authorities cited in setting aside judgment.v.That the Learned trial Magistrate erred in law by awarding both costs of the application and throw away costs to the Respondent. 11.The parties filed written submissions as follows; The appellant, Pius Musyoka, submitted that he appeals against two separate decisions of the Small Claims Court made on 27th July 2023 and 7th September 2023. 12.In the first decision, the trial magistrate set aside a judgment that had been entered on 15th February 2023 but ordered the appellant (the claimant) to pay the respondent throw-away costs of Kshs 15,000. 13.The magistrate made the payment of those costs a condition precedent to the next hearing, with the consequence that default would lead to dismissal of the appellant's suit. 14.The appellant submits that this was a wrongful exercise of judicial discretion because he had already incurred substantial costs in filing and prosecuting the claim, as well as in executing the decree, and he was being prejudiced by having to start the matter afresh. 15.He contends that the respondent had ignored the proceedings and only appeared late, yet the court awarded costs to the respondent instead of to the appellant. 16.The appellant further argues that the respondent was duly served with all court processes via WhatsApp on a phone number that the respondent admitted belonged to him, and this was supported by an M-Pesa message confirming ownership. 17.He therefore submits that it was unfair for the court to award costs to a party who claimed ignorance of the proceedings despite proper service. 18.In the second decision, the appellant challenges the magistrate's ruling of 7th September 2023 that allowed the respondent to file a witness statement after the appellant had already closed his case. 19.The appellant argues that this amounted to trial by ambush, violated Article 50(1) of the Constitution, offended the rules of natural justice, and contravened the pretrial conference requirements under Order 11 of the Civil Procedure Rules. 20.He also asserts that the late filing violated Order 7 Rule 5 and Order 3 Rule 7 of the Civil Procedure Rules, which require timely exchange of documents between parties. 21.He contends that the rules are designed to ensure each party knows in advance the evidence they will face at trial, and that the court retains constitutional power to disallow late evidence. 22.In support of this position, he cites the Supreme Court decision in Raila Odinga & 5 Others v IEBC & 3 Others, Supreme Court of Kenya, Petitions No. 3, 4 and 5 of 2013 (2013) eKLR, where the Court declined to allow additional evidence filed outside the procedural timelines. 23.Accordingly, the appellant prays that both orders of the lower court be set aside with costs awarded to him. 24.The submissions arise from an appeal filed by the Appellant against a ruling of the Small Claims Court at Machakos in SCCCOM No. E236 OF 2022, where the Appellant had originally claimed Ksh. 90,000/- and obtained default judgment after the Respondent failed to enter appearance. 25.The Respondent later discovered the suit upon arrest in execution of warrants and successfully applied to set aside the default judgment, which the trial court granted on 27th June 2023, also awarding the Respondent costs of Ksh. 15,000/-. 26.The Appellant appealed, but the Respondent contends that under Section 38 of the Small Claims Court Act, appeals to the High Court lie only on matters of law, and the appellate court cannot re-evaluate factual findings unless the decision is perverse or based on no evidence. 27.The Respondent relies on Mognochi v Ombrio [2025] KEHC 4096 (KLR) , which cited Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) , for the proposition that a second appeal (and by analogy an appeal under the Small Claims Court Act) confines itself to matters of law unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse. 28.The Respondent submits that the trial court properly set aside the default judgment because there was no certificate of service proving that the Respondent had been served with the Statement of Claim, making the judgment irregular and liable to be set aside ex debito justitiae as a matter of right. 29.This principle was affirmed in James Kanyita Nderitu v Maries Philotas Ghika & Another [2016] eKLR , which was quoted with approval in Kanyiri v Wamuyu [2022] KEELC 2509. 30.On costs, the Respondent argues that under Section 27(1) of the Civil Procedure Act, costs are discretionary and generally follow the event unless the court orders otherwise for good reason. 31.The Respondent was successful in his application, so the trial court rightly exercised its discretion in awarding him costs of Ksh. 15,000/-, relying on the writings of Mr. Justice (Rtd) Kuloba in Judicial Hints on Civil Procedure, 2nd ed. (Nairobi: LawAfrica, 2011), p 94, and the case of Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] KEHC 7064 (KLR). 32.The Respondent clarifies that the trial court awarded only costs of the application, not throw-away costs, and the Appellant's argument to the contrary is incorrect. 33.The Respondent further submits that an appellate court should not interfere with the trial court's discretion on costs unless it was exercised unjustifiably or on wrong principles, citing Njamumo v Mwobe [2025] KEHC 3938 (KLR) and Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR. 34.The submissions also address a separate appeal from Kisii SCCC No. E087 of 2024, where the trial court struck out a claim for trespass and destruction of bricks as time-barred under Section 4(2) of the Limitation of Actions Act, which requires tort claims to be filed within three years. 35.The claim was filed in June 2024 but the cause of action accrued in March 2021, so it was filed out of time and the trial court was correct to strike it out. 36.Additionally, the Small Claims Court lacked jurisdiction because the dispute related to trespass to land, which is excluded under Section 13(5) of the Small Claims Court Act, and the court correctly applied the principle from Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR that jurisdiction is everything and without it a court must down its tools. 37.The court also discussed the nature of preliminary objections, reaffirming the principles from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696 , that a preliminary objection must be a pure point of law based on undisputed facts and cannot be sustained if facts need to be ascertained. 38.The court dismissed the appeal with costs of Ksh. 55,000/-, citing Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR , on the principles governing costs. 39.The Respondent therefore urges that the instant appeal lacks merit and should be dismissed with costs, as the trial court properly applied the law on service, default judgment, jurisdiction, limitation, and costs. 40.The issues for determination in this appeal are as follows;i.Whether this appeal, as framed, lies to the High Court under Section 38 of the Small Claims Court Act.ii.Whether the trial court properly set aside the exparte judgment.iii.Whether the trial court properly awarded costs of Kshs. 15,000 to the respondent.iv.Whether the appellant is entitled to thrown-away costs. 41.This being an appeal from the Small Claims Court, the jurisdiction of this court is circumscribed by Section 38(1) of the Small Claims Court Act, which provides that an appeal lies to the High Court only on matters of law. 42.This court cannot re-evaluate factual findings unless the decision is perverse or based on no evidence. 43.The trial court's finding that there was no certificate of service for the statement of claim is a factual determination that is not open to challenge in this appeal. 44.On the setting aside of the exparte judgment, the trial court was correct. Where judgment is entered without proper service, it is an irregular judgment and must be set aside ex debito justitiae as a matter of right. 45.This ground of appeal therefore fails. 46.On the issue of costs and thrown-away costs, the court finds that the trial court misdirected itself. 47.The principles governing an application to set aside an exparte judgment are that while the applicant must be allowed to defend, they may be condemned in costs or ordered to pay thrown-away costs. 48.The respondent successfully applied to set aside the judgment but did so at the instance of his own default. 49.The appellant had incurred costs in filing and prosecuting the claim and in executing the decree. 50.The appellant had obtained a valid judgment, though irregularly entered, and should be compensated for the costs rendered abortive by the setting aside. 51.The trial court erred in awarding costs to the respondent, who was the defaulting party. 52.On the directions for hearing, the court notes that the appellant had already closed his case when the respondent was permitted to file his defence. 53.To ensure a fair hearing and avoid prejudice to the appellant, the appellant must be permitted to file a rejoinder to the respondent's statement and may recall any witness or call another witness to respond to the respondent's case. 54.This is consistent with the power of the court under Order 18 Rule 10 of the Civil Procedure Rules to recall a witness at any stage of the suit. 55.The appeal is allowed in part. The court finds that the trial court was correct in setting aside the exparte judgment as it was irregular for want of proper service, which is a finding that this court cannot disturb on appeal. 56.However, the court erred in the award of costs to the respondent instead of awarding the appellant thrown-away costs, and in failing to make appropriate directions to ensure the appellant is not prejudiced by the setting aside. 57.This court accordingly makes final orders as follows;i.That the appeal against the setting aside of the exparte judgment is dismissed.ii.That the order of the trial court awarding costs of Kshs. 15,000 to the respondent is set aside.iii.That the appellant is awarded thrown-away costs of Kshs. 15,000 to be paid by the respondent before the matter is set down for hearing.iv.That the respondent shall file and serve his statement and all pre-trial documents within thirty (30) days of this ruling.v.That the appellant shall have thirty (30) days from the date of service to file any rejoinder and may recall any witness or call another witness to respond to the respondent's case.vi.The matter is remitted to the Small Claims Court at Machakos for hearing on priority basis. 58.Each party shall bear their own costs of this appeal. 59.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF JUNE, 2026.A. N. ONGERIJUDGEIn the presence of:No appearance for the ClaimantNo appearance for the Respondent