https://new.kenyalaw.org/akn/ke/judgment/scc/2026/159

Oriko v Choge (Commercial Case E318 of 2026) [2026] SCC 159 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] SCC 159 (KLR) Republic of Kenya In the Small Claims Court at Eldoret Commercial Case E318 of 2026 ME Aligula, RM July 15, 2026 Between Alex Oriko Applicant and Daniel Kiprono Kiptum Choge Respondent Ruling 1.The ruling herein is in respect to the Notice of motion dated 11th June, 2026 which was filed under certificate of urgency. 2.The application is supported with grounds therein and supporting affidavit sworn by Mr. Daniel Kiprono Kiptum Choge. The applicant deponed that he was unaware of this matter until 8th June, 2026 when warrants of attachment were issued against him. That judgement entered against him was obtained without his participation and in violation of his constitutional right to a fair hearing and against natural justice principle. He further noted that he was not served with any documents as at the time he had lost his phone with the line and had not secured replacement of the line till the month of April, 2026, a copy of the OB was annexed as DKKKC2. He further deponed that he sent ksh 200,000/- to the claimant's business partner and the mpesa statement was annexed as DKKKC 3 a, b and c. The applicant further denotes that the auctioneers are threatening to auction his only home yet he was not heard and that if the said parcel of land is sold then his children and family risk being homeless and destitute. The applicant deposes that he has a meritorious defence that raises triable issues and annexed a draft response to the claim as DKKC4. 3.The application was opposed by a replying affidavit sworn on 1st July, 2026 by Alex Oriko who deponed that the entire application is founded on falsehood, is calculated afterthought, and is desperate attempt to defeat, delay and frustrate the lawful execution of a regular judgment and decree of the court. That the applicant's assertion that he was never served with the pleadings and only learnt of the suit upon the issuance of warrants of attachment is deliberate falsehood and contradicting the court record, It was further deponed that the applicant was duly served on his mobile number 0722148653 as deposed in the affidavit of service of Enock Kimutai Bett sworn on 2nd March, 2026, the applicant having himself directed that the documents be sent to that very WhatsApp number and having acknowledged receipt by double clink the WhatsApp screenshot was annexed as A0-1. The respondent further deponed that the applicant was further served with the notice of entry of judgment and decree on the same number 0722148653 as deposed in the affidavit of Simon Aluchio Mulunda sworn on 27th April, 2026 which was acknowledged by double clicks. screen short was annexed as AO2. That the number is the same one in the lease agreement dated 30th April, 2024 and all prior correspondences and it is active and functional contrary to the insinuation that the phone got lost or switched off. The respondent annex mpesa messaged dated 29th June, 2026 generated on and emanating from the applicants' said number confirming that the line is in active use. 4.Further, the respondent deposes that the judgment was regularly entered on 16th March, 2026 following proper service and the applicant's failure to file any response within the statutory period, the decree was issued. The respondent prayed for the application to be dismissed with costs 5.The application was argued by written submissions. The court has had the privilege to read through the application, replying affidavit and submissions and considers them while writing the ruling herein.From the application, grounds of opposition and the trivial submissions by the parties. What is before this court for determination is: A. Whether the application has merit or not? 6.Matters in this court should be determined within sixty days in compliance with the provision of section 34 of the Small Claims Court Act No 2 of 2026. This matter ought to have been concluded. The statement of claim was filed in court on 26th February, 2026. 7.I have looked at the certificate of service sworn by Enock Kimutai Bett on 2nd March, 2026, which stated that the respondent was served with the statement of claim and the first mention on 27th February, 2026. The documents were served via WhatsApp number 0722148653. There was nothing on record to suggest that the certificate of service filed by the claimant indicating that the respondent was served with the pleadings and the relevant notices contained falsehoods. Further, the respondent did not deny that the phone number indicated to have been used for communication and service of the statement of claim belonged to him but deponed that was never served by any documents as at the time he had lost his phone with the line and had not secured replacement of the line till the month of April, 2026 and annexed an OB extract. He further submits that he learnt of the matter when he was issued with the warrants of attachment. From the affidavit filed by the claimant, the same was received and double ticked meaning the recipient received the message. I have seen the OB extract attached the same is for 17/5/12/2026 this court cannot confirm if the same was issued following a report of the lost phone or another report since the inventory has not been filed before this court. 8.Further, the applicant has not filed any documents from Safaricom to proof that he later replaced his line and as such I am not persuaded. Either way it is not convincing enough that the applicant lost his phone, made a report in 2025 and was off until April, 2026 when he decided to up his line. The respondent failed to enter appearance and or file a response and subsequently judgment was entered on 16th March, 2026, consequently the decree herein was issued and warrants of attachment. The respondent has now realized things are serious and decided to move court seeking for orders for stay and setting aside. I further note that it is not the applicant's land that has been proclaimed as alleged but his property as captured on the proclamation notice, therefore, the question of his family being left destitute is premature unless she fails to satisfy the debt and the claimant herein executes which either way will be within his right. Having confirmed that he was indeed served it is clear that the judgment was therefore regular. 9.As to whether the judgment entered should be set aside the court refers to Section 43 of the Small Claims Court Act where the court is allowed on application of any party to the proceedings to set aside any of its orders and make such further orders as it thinks just. The court is guided by the celebrated case of Shah v Mbogo & Another [1967] EA 116. The court held that whether or not to set aside ex parte judgement is discretionary is not in doubt and that the discretion is intended so to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the course of justice. See In Potters House Academy v Leah Chemeli Kemer [2022] eKLR the court held that: “In an application to set aside an ex parte hearing the Court ought to listen to what explanation or excuse the applicant has that prevented them from attending Court. If found reasonable, the application ought to be allowed.” 10.This Court is alive to the fact that currently the High Court is divided on the legality of decisions made by this Court after the expiry of sixty days stipulated in section 34 of the Small Claims Court Act No 2 of 2016. 11.Setting aside default judgment is judicial discretion where the court should strike a balance between the right to be heard with the right to timely justice. The discretion should not assist a person who has deliberately sought whether by evasion or other wise to obstruct or delay the course of justice. Shah v Mbogo & Another (Supra). 12.Therefore, while justice must not only be done but must also be seen to be done, that principle cuts both ways. The Court must balance the Respondent's right to be heard against the Claimant's equally important right to enjoy the fruits of a lawfully obtained judgment. In this case, the Respondent elected not to defend the suit and now attributes his failure to the alleged loss of his mobile phone. However, the OB extract annexed to his application does not confirm that a report of a lost mobile phone was ever made, there is no any OB excerpt annexed. I have not seen any evidence showing the replacement of the line from Safaricom. The explanation is therefore unsupported by credible evidence and falls short of establishing sufficient cause for the Court to exercise its discretion in his favour. Granting the orders sought in these circumstances would occasion prejudice to the Claimant, who diligently pursued her claim to its lawful conclusion, the application lacks merit and is hereby dismissed with costs to the claimant/respondent. 13.Parties are granted leave to appeal 30 days stay of execution is granted. DELIVERED AND SIGNED AT ELDORET THIS 15TH DAY OF JULY 2026MILLIAN ALIGULA – RMIn the presence of C/A LepatoiyeApplicant: Mr. SimiyuRespondent: Ms. Kigen