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Njenga & another v Hamud (Civil Appeal 145 of 2020) [2026] KECA 1539 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1539 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 145 of 2020 SG Kairu, HI Ong'udi & RB Ngetich, JJA July 31, 2026 Between Onesmus Ngunjii Njenga 1st Appellant Rock Investment Company Limited 2nd Appellant and Captain Suleiman Amir Hamud Respondent (Being an appeal against the Ruling and Orders of the High Court by (M. Kasango, J) delivered on 30th May, 2019 in Nairobi High Court Commercial Case No. 262 of 2015) Judgment 1.The respondent was the plaintiff while the 1st and 2nd appellants were the 1st and 2nd defendants in the High Court. In the plaint dated 29th May 2015, the respondent sued both appellants for breach of agreement and memorandum of understanding and claimed as follows:i.The sum of USD115,311 and Kshs. 1,393,000/= for importation cost and other expenses.ii.Damages for breach of contract.iii.Interest thereon.iv.Costs of the suit.v.Any other relief the court deems fit to grant. 2.The appellants did not enter appearance nor file any defence.The respondent later withdrew the claim for general damages and interlocutory judgment was entered in his favour against both appellants for the liquidated sum of USD 115,311 and Kshs. 1,393,000/= on 31st March 2016 and a decree issued on 6th April 2016. 3.The appellants later filed a Notice of Motion dated 29th June, 2018 seeking a stay of execution of the judgment and the setting aside of the said judgment. They also sought leave to file a defence to the claim. The respondent filed a replying affidavit sworn on 19th November 2018 opposing the said application. 4.The application was heard inter partes and the trial Judge Mary Kasango, J, found nothing irregular about the default judgment that was entered by the Deputy Registrar. The court found that the documents the 1st appellant presented before the court did not assist in showing how much of the debt he had paid. The Hon. Judge also found that the invoices and funds remittances negated the 1st appellant’s disposition in his affidavit sworn on 1st August, 2018. This is found in several paragraphs of the affidavit. It was the court’s finding that the appellants had not given any good reason to explain why they had not filed a defence to the claim despite having been served with the plaint and having knowledge of the existence of the suit. The 1st appellant was also served with a notice to show cause why a warrant should not be executed. The Notice of Motion dated 26th June, 2018 was thus dismissed with costs vide the ruling dated 30th May, 2019. It is this ruling that is the subject of this appeal. 5.Being aggrieved by the said ruling the appellants filed this appeal dated 27th February, 2020 citing 37 grounds which can be summarized as follows;i.The Hon. trial Judge erred in law and fact by upholding the default judgment.ii.The trial Judge erred by determining that the 1st appellant was aware of the entry of ex-parte judgment.iii.The trial Judge erred in finding that the draft defence did not raise any triable issues.iv.The trial Judge erred in law and fact by holding that the appellants were accountable for their advocate’s omissions.v.The trial Judge erred in law and fact by failing to acknowledge that there was a disparity between the amounts claimed inthe plaint and the payments made as per the draft defence.vi.The trial Judge erred in law and fact by finding that the amount owing was not in dispute. 6.The appeal was argued by way of written submissions. The appellants’ submissions were filed by MS Advocates and are dated 19th February, 2021. Counsel submitted that the impugned judgment was irregular and ought to have been set aside ex debito justitiae. He argued that upon entry of the interlocutory judgment, the matter should have been set down for hearing of the remainder of the suit. That if there was any amendment of the plaint then the same ought to have been served afresh on the appellants which was not the case. Reference was made to the case of Fidelity Commercial Bank Limited & Another [1998]-[2017] eKLR, Civil Appeal No. 37 of 2007. 7.It was learned counsel’s argument that the draft defence that was annexed to the Notice of Motion raised arguable and triable issues. Thus the appellants were condemned unheard and should be granted their rights to fair hearing under Article 50 of the Constitution. He further contended that the appellants were never served with a Notice of entry of judgment as stipulated under Order 22 Rule Civil Procedure Rules. 8.Learned counsel submitted that the principles guiding the court in determining whether or not to set aside an ex parte judgment were laid out in the case of Pithon Waweru Vs. Thuka Mugira [1983] eKLR as cited in Elizabeth Wanjiku Isaac & Another Vs. Harrison Kamau Kinyanjui [2018] eKLR as follows:“a.Firstly, there are no limits or restrictions on the Judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. Patel Vs. E.A Cargo Handling Services Limited [1974] E.A 75 at 76C & E.b.Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to distract or delay the course of justice. Shah Vs. Mbogo [1967] EA 116 at 123B, Shabir Din Vs. Ram Parkash Anand [1955] 22 EACA 48.” 9.Secondly, learned counsel while referring to Order 10 Rule 4 of the Civil Procedure Rules submitted that the interlocutory judgment could not affect the unliquidated claim as per the prayers in the plaint which included general damages and costs. Thus, the matter should have been set down for hearing under Order 10 Rule 9 of the Civil Procedure Rules. This to him was an irregular judgment and should have been set aside by the trial Judge as was held in James K. Nderitu & Another Vs. Marios P. Chikas & Another [2016] eKLR. 10.Thirdly, is the issue of the defence being good and raising triable issues. On this, learned counsel relied on the case of Philip Keipto Chemwolo, Mumias Sugar Company Limited Vs. Augustine Kubende [1986] eKLR. He argued that despite the appellants’ defence not having been filed by the defence counsel, it’s a defence that raises triable issues, and the parties ought to be given a chance to be heard. In support counsel referred to the cases of;i.Sebei District Administration Vs. Gasyali [1968] EA 300.ii.Jaminadas Sodha Gordhandas Hemray [1952] 7 ULR II where the court held:“The nature of the action should be considered, the Defence if one has been brought to the notice of the court, however irregularly, should be considered, and finally, I think it should always be remembered that to deny the subject a hearing should be the last resort of a court….” 11.Additionally, learned counsel submitted that the appellants did not enter appearance nor file defence because of their advocate’s negligence. That they were under the mistaken belief that their advocate had done the needful having given him/her full instructions. To support this, they produced evidence to confirm having instructed the firm of Mrs. Gitonga Kinyanjui Advocates and made part payment of fees. They also annexed a draft statement of defence they had discussed with learned counsel. In support of this, counsel cited the cases of Philip Keipto Chemwolo (supra) and Patel Vs. E.A Cargo Handling Services Limited [1974] EA 75. 12.The respondent’s submissions were filed by Odero Osiemo & Co. Advocates and are dated 26th April 2024. Learned counsel in response to the ground on the irregularity of the judgment gave a background of what has transpired in this case from the filing of the plaint upto the entry of judgment. He argued that the appellants were not truthful as the evidence shows they were well aware of the judgment herein. He submitted that the trial Judge interrogated and addressed the issues raised vide the impugned ruling. 13.On the issue of a defence with triable issues learned counsel submitted that the evidence on record shows that the appellants have no defence. He referred to the executed agreement, (page 66 of the record of appeal) and what the 1st appellant told the court on 25th June, 2018 (page 196 line 22 -24 of the record of appeal). 14.On the issue of the Law firm of Gitonga Kinyanjui advocates failing to act after being engaged and paid by the appellants, learned counsel further referred to the record and the appellants’ cheque to the said Law firm dated 26th May, 2016. This he argued was months after service of the summons and entry of the interlocutory judgment. He thus asked the court to ignore that submission by the appellants who were simply painting the said Law firm in bad light. 15.Learned counsel further submitted that the appellants lied to court by submitting that the 1st appellant had served six (6) months in jail over this matter. He stated that the truth of the matter was that the 1st appellant only served two (2) months in jail. He implored the court to dismiss the appeal with costs. 16.We have carefully considered the Memorandum of Appeal, the record of proceedings before the High Court as well as the written and oral submissions by both parties. The issue we find falling for determination is whether the learned trial Judge exercised her discretion judiciously in declining to set aside the interlocutory judgment entered on 31st March 2016 by the Deputy Registrar. 17.This being a first appeal this court has a duty to reappraise the evidence and come to an independent conclusion as if it is the court hearing the matter for the first time. This principle was set out in the case of Peter Vs. Sunday Post Limited [1958] EA 424, and later in Selle & Another Vs. Associated Motor Boat Company Limited & Others [1968] 1 EA 123. 18.Further in Gitobu Imanyara & 2 Others Vs. Attorney General [2016] eKLR where the Court of Appeal stated thus: “An appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 19.The brief facts of this case are that the appellants and the respondent entered into a contract whereby the appellants were to import three (3) Aircrafts at a sum of USD 131,200 for the respondent. A sum of USD 121,000 was paid by the respondent leaving a balance of USD 10,200 to be paid three (3) months before the Aircrafts were registered in Kenya. This was reduced into an agreement dated 27th February, 2013. The same was not complied with leading to the signing of another agreement referred to as “Memorandum of Understanding between Suleiman Amer Hamud and Rock Investment Company Limited,” (page 104 of the record). It is dated 25th June 2013. 20.Further additional expenses were incurred by the respondent who had to pay for the importation of an Aircraft CESSNA 172N SKY HAWK at USD 49,500 spent on 23rd August 2013. On 2nd March 2015 another agreement was entered into whereby the appellants admitted owing the respondent USD 68,511 which they agreed to pay by two instalments which they did not do. The full particulars are as set out in the plaint dated 29th May, 2015 at paragraph 13 and 14. 21.The Memorandum of Understanding and two further agreements did not yield anything much in respect to the outstanding payments. This led to the filing of the plaint dated 29th May, 2015 which the respondent confirmed was served on the 1st appellant on 8th June 2015. The plaint was later amended and served on the 1st appellant who received it on his own behalf and on behalf of the 2nd appellant on 3rd December, 2015. Before the filing of the Notice of Motion dated 29th June, 2018 which culminated in the impugned ruling there had been an execution which resulted in the attachment of goods which was successfully contested by the 1st appellant’s wife. There was also a notice to show cause filed against the 1st appellant which resulted in him being sent to civil jail. 22.The appellants have denied ever being aware of the existence of this case. It is well established that judicial discretion if improperly exercised is a matter of law. Therefore, from the above facts the primary questions before this court are as follows:i.Whether the appellants were duly served with the pleadings.ii.Whether the interlocutory judgment was regular andiii.Whether the trial court erred in not setting aside the said judgment. 23.On the first issue the appellants have denied having had any knowledge of the suit Nairobi, HCCC No. 262 of 2015, until the time when the 1st appellant’s wife’s goods were attached. Thereafter, the appellants got into serious negotiations with the respondent for settlement of the amounts owing. That what followed were committal proceedings and the 1st appellant was later sent to civil jail but released after a month when the respondent failed to sustain him there. 24.There is evidence on record showing that the 1st appellant was served on 8th June, 2015 by a process server called Willis Odhiambo Agayi. The said Mr. Agayi swore an affidavit dated 7th August, 2015 on the same. This evidence has not been contested. It is also not disputed that despite the service the appellants did not enter appearance nor file any defence to suit within the stipulated timelines. 25.For the appellants to claim that they were not aware of the suit before the court is a real abuse of the court process. A decree was drawn herein clearly showing who the parties were. It is the same decree that was used by the auctioneer to undertake execution. These documents were once again served during the execution. The attached goods were found to belong to the wife of the 1st appellant who lives with him. This was confirmed through an affidavit sworn by the said wife (Winfred Achieng Njenga) dated 19th May 2016 in an objection she filed in respect of the properties which had been attached. The appellants’ names were on those documents. Later the 1st appellant was sent to civil jail by the court for failure to pay the decretal sum. 26.The appellants are parties who were served with the plaint and summons to enter appearance and they were later involved in other processes over the same matter. They cannot therefore claim to have known nothing about the suit Nairobi HCCC No. 262 of 2015. Our finding is that the appellants were duly served with the pleadings and necessary documents but took no action. Thus the judgment was regular. It is the appellants’ argument that they were not issued with a Notice of entry of judgment and that upon withdrawal of the prayer for general damages they ought to have been served afresh with the plaint. 27.Service herein had been effected on 8th June, 2015 while judgment was entered on 31st March, 2016 which was over nine (9) months after service of the plaint and summons. Appearance ought to have been entered within 15 days of service which was not the case here. The attachment was procedurally conducted. The appellants are not sincere in claiming that they were not aware of the case from which the warrants of attachment originated. 28.Having found that the appellants were served and that the judgment entered was regular, the next issue is for this court to determine whether the trial court in declining to set aside the interlocutory judgment failed to exercise its discretion judiciously as bestowed on it under Order 10 Rule 11 of the Civil Procedure Rules. On this the trial Judge referred to the case of Southern Credit Banking Corporation Limited Vs. Jonah Stephen Nganga [2006]eKLR where the court stated: “Indeed, principles of setting aside an ex parte judgment are very clear. If the judgment is regular the court is vested with unfettered discretion to set aside such judgment on such terms as are just. If judgment entered is found to be irregular it ought to be set aside ex dibitio justitiae.” 29.In deciding whether or not to set aside ex parte orders, the court must consider several factors. This was answered in the case of CMC Holdings Limited Vs. Nzioki [2004] KLR 173 where it was stated as follows:“In law the discretion that a court of law has in deciding whether or not to set side ex parte orders was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other excusable mistake or error. It would not be proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistakes, inadvertence, accident or errors.……… the law is now well settled that in an application for setting aside ex parte judgment the court must consider not only the reason why the defence was not filed for the matter or why the applicant failed to turn up for the hearing on the hearing date but also whether the applicant has reasonable defence which raises triable issues.” 30.In arriving at the decision she did, the learned Judge considered several matters namely:i.The appellants’ unsubstantiated claim of over payment.ii.The invoice dated 12th October, 2017 when judgment had been entered in 2015.iii.The signed MOU and arguments with the appellants acknowledging indebtedness to the respondent.iv.Paragraphs 13, 14, 22 & 24 of the 1st appellant’s affidavit sworn on 1st August 2018 where he acknowledges the amount owed to the respondent. 31.From all the admitted facts it is clear that the appellants are not raising any triable issues but are just buying time to deny the respondent his right to enjoy the fruits of his judgment. If indeed the respondent was overpaid there was nothing that could have hindered the appellants from bringing it out in a well set out defence. 32.The 1st appellant was well served with the notice to show cause on 2nd May, 2018 but never attended court when it came for hearing on 10th May, 2018. This necessitated the issuance of a warrant of arrest. Upon arrest and presentation to court, he admitted owing the claim and alleged to be working on clearing the amount owed. He would not have told the court such if indeed the two of them did not owe the respondent the amounts claimed. 33.The issue of general damages raised by the appellants is a non-starter. The reason being that the respondent withdrew the said claim and only pursued the claim for special damages. This happened long after the default judgment had been entered against the appellants. The same was well addressed by the trial Judge, in her judgment. 34.After analysing all the evidence on record, and what transpired in this case, we do not find any reason to interfere with the findings by the learned trial Judge. The appeal lacks merit and is hereby dismissed with costs to the respondent. 35.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.S. GATEMBU KAIRU, FCIArb, C. Arb..................JUDGE OF APPEALH. I. ONG’UDI..................JUDGE OF APPEALR. NG’ETICH..................JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR