https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7205

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEALLATE DIVISION** **CIVIL APPEAL NO. E249 OF 2025** **JANE ORIOKI ………………………………………….1ST APPELLANT** **PAULINDE MWENDE MUSEE** (Trustees of Divine providence Franciscan Missionaries**)…………….………………..2ND APPELLANT** **VERSUS** **JOEL KYATHA MBALUKA** **T/A MBALUKA & CO. ADVOCATES …………….…RESPONDENT** *(Being an Appeal from the Ruling of Hon. Thomas T. Nzyoki (CM) in Milimani CMCC NO. 4517 of 2019 delivered on 28/2/2025)* **JUDGEMENT** 1. The Trial Court made a ruling dated 30/7/2021 setting aside an exparte judgment entered on 23/12/2019 and granted Respondent an extension of time to file a defence. 2. The appellant did file the defence as directed and the trial court reinstated the exparte judgment on 30/7/2021**.** 3. The Appellant filed an application dated 27/11/2024 seeking review of the orders issued on 30/7/2021. 4. The Trial Court delivered the impugned Ruling dated 28/2/2025 declining the application for review. 5. The Appellant has appealed against the said Ruling on the following grounds. 6. ***THAT the Learned Magistrate erred in law and fact in disallowing the Appellants’ application dated 27th November 2024.*** 7. ***THAT the Learned Magistrate erred in law and fact by failing to consider that the orders issued on 30th July 2021 were given in the Appellants’ Advocate’s absence, which caused the Appellants’ non-compliance.*** ***A. The Learned Magistrate erred in law and fact by failing to consider that the ruling date of 30th July, 2021 was given in the appellants’ Advocate’s absence, and it was therefore the Respondent’s counsel’s duty to serve a ruling notice.*** ***B. The Learned Magistrate erred in law and fact by failing to consider that the Appellants' counsel was absent when the ruling was delivered on 30th July 2021 due to lack of service of a ruling notice, and therefore it was the Respondent's counsel's duty to notify them of the ruling and the orders issued.*** 1. ***THAT the learned magistrate erred in law and fact by failing to consider the substantive justice in dismissing the Appellants' application.*** 2. ***THAT the learned magistrate erred in law and fact in failing to consider that the Appellant’s application was also premised on Article 50(1) and 159(2) (d) of the Constitution and Section 1A, 2B and 3A of the Civil Procedure Act.*** 3. ***THAT the learned magistrate erred in law and fact in failing to consider the Appellant’s defence that the Respondent did not give an undertaking on their behalf, which was supported by the judgment in ELC Case NO. 696 of 2016.*** 4. ***THAT the learned magistrate erred in law and fact in failing to consider the Appellant’s defence that Respondent has not made any payments based on the undertaking given on behalf of Family Bank supported by the letter from Rachier & Amolo Advocates.*** 5. ***THAT the learned magistrate erred in law and fact by failing to consider that it would be in the wider interests of justice to allow the Appellant to defend the suit.*** 6. ***THAT the learned magistrate erred in law and fact by failing to consider that the Respondent would be compensated by payment of costs and will not suffer prejudice if the Appellant is allowed to defend the suit.*** 7. ***THAT the learned magistrate erred in law and fact in failing to consider that the delay and inaction in bringing the application was excusable in the wider interests of justice and could be compensated by costs.*** 8. ***THAT the learned magistrate erred in law and fact by failing to consider that the 1st Appellant paid ~Kes 300,000/=~ 1,200,000/= under coercion and duress to gain her freedom and liberty.*** 9. ***THAT the learned magistrate erred in law and fact in failing to consider that the Appellants are willing to abide by any conditions so that they can be heard.*** 10. ***THAT the learned magistrate erred in law and fact by failing to consider that the Applicants would suffer irreparable loss and injustice if not heard in the suit.*** 11. ***THAT the learned magistrate erred in law and fact in failing to consider that the Respondent would be unjustly enriched if the suit is not heard on the merits.*** 12. ***THAT the learned magistrate erred in law and fact in failing to consider that the Appellants are willing to be heard in the suit and defend themselves.*** 13. ***THAT the learned magistrate erred in law and fact in failing to consider that the default judgment was a colossal amount that would burden the appellants for the rest of their lives.*** 14. The parties filed written submissions as follows; The Appellants submitted that they seek to set aside a default judgment and file their defence in the lower court suit. 15. The dispute originates from a conveyancing transaction where the Appellants, acting as registered trustees of the Divine Providence Franciscan Missionaries, sought funding from Family Bank Ltd to buy property for a children's home. 16. The Respondent, an advocate representing Family Bank, issued a professional undertaking of 5,000,000 Kenyan Shillings to the vendors, which went unhonored by the bank. 17. The Respondent also issued a second letter of undertaking for 3,000,000 Kenyan Shillings on behalf of the Trust, which was similarly unpaid. 18. Consequently, the vendors sued the Respondent in Nairobi ELC Case No. 696 of 2016 (OS), where the court upheld the bank's 5,000,000 Shillings undertaking but dismissed the 3,000,000 Shillings letter, ruling it was not an enforceable professional undertaking.Family Bank subsequently paid the 5,000,000 Shillings to the vendors. Despite this, the Respondent filed Nairobi MCCC No. 4517 of 2019 against the Appellants, claiming 8,000,000 Kenyan Shillings based on both undertakings alongside an additional claim for defamation. 19. The Respondent obtained a default judgment and pursued execution via civil jail. Although a subsequent lower court ruling on July 30, 2021, conditionally set aside the default judgment on the terms that the Appellants file a defence and pay 50,000 Shillings in costs within fourteen days, the Appellants were never served with the ruling notice and missed the deadline, leading to an automated reinstatement of the default judgment without their knowledge. 20. Later execution proceedings saw the first appellant sent to civil prison before being bailed out by well-wishers, during which she was denied legal counsel and coerced into a payment plan under duress. 21. The Appellants subsequently applied to review or set aside the conditional terms of the 2021 ruling, but the trial court dismissed their application on February 28, 2025, prompting this appeal. 22. In establishing that the appeal possesses merit, the submissions argue that the Appellants' failure to comply with the 2021 ruling terms was entirely unintentional because the Respondent's advocates failed to serve them with the court-ordered ruling notice. 23. Denying them relief breaches the principle of a fair hearing, as a party cannot comply with orders of which they are unaware. 24. Furthermore, the subsequent show-cause proceedings were profoundly unfair and coercive, as the first appellant was unrepresented, blocked from accessing counsel, and forced into terms under threat of imprisonment. 25. The Appellants' advocates also cannot be blamed for the delay in applying for a review given that they were kept entirely in the dark regarding the delivery of the judgment. 26. Regarding the merits of their defence, the Appellants contend that the Respondent's claim for 8,000,000 Kenyan Shillings is baseless, fraudulent, and would result in unjust enrichment. 27. The Respondent did not pay any money out of pocket to the vendors on behalf of the Appellants, as Family Bank fulfilled the first undertaking and the ELC court declared the second letter legally unenforceable as an undertaking. 28. Therefore, the Respondent has suffered absolutely no loss to justify compensation. 29. Additionally, the defamation claim is legally unsustainable because the Appellants were not found liable for any breach of undertaking by the ELC court, and, fundamentally, statements made within court proceedings are legally privileged. 30. The submissions emphasize that granting the appeal serves the interest of justice under Articles 48 and 159(2)(d) of the Constitution of Kenya, which mandate the delivery of substantive justice over technical rules and safeguard the right of access to justice. 31. Barring the Appellants from defending themselves based on missed timelines from an unserved ruling amounts to an unfair reliance on technicalities at the expense of natural justice. 32. Finally, the Appellants argue that the Respondent will suffer no prejudice if the appeal is allowed, as the suit will simply be heard on its merits, the Respondent can be compensated with the lower court's award of 50,000 Shillings in costs, and he will retain his judgment if successful. 33. Conversely, the Appellants stand to suffer immense prejudice and injustice if forced to satisfy a colossal default judgment without ever being given an opportunity to be heard in court. 34. The submissions conclude by urging the High Court to allow the appeal with costs. 35. The respondent submitted that the dispute originated when the respondent, Joel Kyatha Mbaluka trading as Mbaluka & Company Advocates, obtained an interlocutory judgment against the appellants on December 23, 2019, following their failure to file a defence despite being served with the summons and pleadings. 36. In August 2020, the appellants sought to set aside that judgment, and on July 30, 2021, the trial court conditionally allowed their application, granting them 14 days to file their defence and pay throw-away costs of fifty thousand shillings, failing which the judgment would automatically stand reinstated. 1. The appellants failed to comply with these conditions, leading to the reinstatement of the judgment. 2. More than three years later, on November 27, 2024, the appellants filed a Notice of Motion seeking to review or set aside the conditions of the 2021 ruling, reinstate the order setting aside the default judgment, and have their annexed defence deemed filed. 3. They argued that their advocates were absent when the 2021 ruling was delivered due to a lack of service of a ruling notice, which prejudiced them and prevented compliance. 4. The respondent opposed the application through a replying affidavit and a notice of preliminary objection, arguing that the court was functus officio and lacked jurisdiction to reopen the case or disturb the costs order. 5. The respondent highlighted that the appellants had delayed for nearly five years since the 2019 judgment and over three years since the 2021 ruling, asserting that equity aids the vigilant rather than the indolent. 6. Furthermore, the respondent pointed out that the first appellant had appeared in court multiple times alongside new legal representation and had orally consented to the decretal amount due, which estopped the appellants from disputing the debt. 7. The respondent also raised a preliminary objection stating that the appellants’ current advocates had failed to obtain formal leave to come back on record after being previously replaced, rendering the application incurably defective. 8. Following these arguments, the trial magistrate dismissed the appellants' application on February 28, 2025, prompting the current appeal grounded on seventeen claims of legal and factual errors by the trial court. 9. In the current submissions, the respondent frames the main issue for determination as whether the trial magistrate erred in disallowing the application for review and refusing to admit the annexed defence. 10. The respondent contends that under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, the power of review is strictly discretionary and confined to specific statutory grounds. 11. These grounds are limited to the discovery of new and important evidence, a mistake or error apparent on the face of the record, or any other sufficient reason interpreted analogously to the first two grounds. 12. The respondent submits that the appellants failed to demonstrate any of these statutory criteria, raising instead mere allegations of fact. 13. Citing established jurisprudence, the respondent stresses that an erroneous decision cannot be re-argued under the guise of a review, nor can a party utilize review mechanisms as an appeal in disguise. 14. The respondent further emphasizes that any application for review must be brought without unreasonable delay. 15. The lapse of over three years between the July 2021 ruling and the November 2024 application constitutes an inordinate and inexcusable delay, which independently barred the court from exercising its review jurisdiction. 16. The respondent argues that the appellants had a primary duty to monitor their own file and cannot rely on the alleged lack of a ruling notice to excuse years of inaction, especially since they squandered the ample opportunity initially granted to them to present a defence. 17. Reinstating the orders after such a protracted delay would be self-contradictory and would unjustly deny the respondent the right to enjoy the fruits of a valid judgment. 18. Addressing the supplementary grounds of appeal, the respondent counters the appellants' reliance on constitutional provisions regarding the right to a fair hearing and the administration of justice without undue regard to technicalities under Articles 50(1) and 159(2)(d). 19. The respondent points out that the trial magistrate did not ignore these provisions but correctly determined that a denial of rights did not arise in this context. Invoking Supreme Court precedent, the respondent submits that Article 159 is not a panacea to cure deliberate procedural shortfalls or non-compliance with well-settled rules. 20. The right to be heard only guarantees an opportunity to present a case, and the court cannot compel a party to utilize that opportunity if they choose to remain indolent. 21. The respondent concludes that because the application completely failed to meet the rigorous thresholds for review, the trial magistrate properly exercised his judicial discretion. 22. Consequently, an appellate court should not interfere with that discretion, and the entire appeal should be dismissed with costs. 23. The issues for determination in this appeal are as follows; 24. ***Whether the trial court was correct in declining to grant the Appellants' application for review of the orders issued on 30th July 2021.*** 25. ***Whether the Appellants' failure to comply with the conditional orders of 30th July 2021 was excusable.*** 26. On the issue as to whether the Appellants' application for review met the threshold set out in law, the law governing review is well settled. 27. Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules provide that a court may review its order upon discovery of new and important matter or evidence, on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. 28. The Courts have held that an error apparent on the face of the record must be one that is self-evident and does not require a long drawn out process of reasoning to establish. 29. While the Appellants framed their application as a review, the main grievance is that they were never served with the ruling notice for the 30th July 2021 orders. 30. This lack of service meant they were unaware of the fourteen-day timeline to file a defence and pay costs, resulting in the automatic reinstatement of the default judgment. 31. This Court finds that the trial magistrate erred by failing to consider that the Appellants' non-compliance was not deliberate. 32. The fault lay with the Respondent’s counsel, who had a duty to serve the ruling notice upon the Appellants' advocates. 33. The Appellants cannot be blamed for missing a deadline they had no knowledge of. 34. To shut them out of the opportunity to be heard based on this procedural lapse would be to elevate technical rules over the overarching goal of substantive justice. 35. Furthermore, the Appellants have demonstrated that they have a defence that raises triable issues. 36. The record shows that the claim for KES 8,000,000 is contested, with the Appellants arguing that the professional undertaking was not honored by the bank and that part of the claim was dismissed by the Environment and Land Court. 37. A defence that raises triable issues, even if likely to fail, should ordinarily be allowed to go to full trial. 38. The principle of access to justice enshrined in Article 48 of the Constitution and the command to administer justice without undue regard to procedural technicalities under Article 159(2)(d) compel this court to ensure that litigants are given their day in court. 39. While the Appellants delayed in bringing the application for review, that delay is explained by their ignorance of the 2021 ruling. 40. The Respondent is not without remedy as the prejudice of a delayed hearing can be compensated by an award of costs. 41. However, the prejudice to the Appellants of being held liable for a colossal sum of money without a hearing is far greater and constitutes an irreparable injustice. 42. Consequently, this appeal is allowed. The ruling of the trial court delivered on 28th February 2025 is hereby set aside. The default judgment entered against the Appellants is set aside, and the Appellants are granted leave to file their defence within fourteen (14) days of this judgment. 43. The Appellant to pay the respondent thrown away costs of Kshs. 50,000 which were ordered before the case is heard denovo. 44. The costs of the application which was before the trial court and for this appeal to abide the cause. 45. Orders to issue accordingly. **Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 25th day of May, 2026.** **………….…………….** 1. **N. ONGERI** **JUDGE** **In the presence of:** Mr Ogutu. the Appellant No appearance for the Respondent Ubah – Court Assistant