https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9038

Wamuri v Shimaka t/a Marende Necheza & Company Advocates (Commercial Case E021 of 2025) [2026] KEHC 9038 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9038 (KLR) Republic of Kenya In the High Court at Mombasa Commercial Case E021 of 2025 J Ngaah, J June 26, 2026 Between Pamela Odhiambo Wamuri Plaintiff and Leonard N. Shimaka t/a Marende Necheza & Company Advocates Defendant Ruling 1.Through an application dated 17 June 2025 the defendant has moved this Honourable Court for two main prayers which have been couched as follows:“ 3.That this Honorable Court may be pleased to set aside, the Judgement and/or decree of this Honorable Court issued on 19ᵗʰ May 2025. 4.That this Honorable Court may be pleased to grant leave to the Defendant to file Defence out of time”. 2.The application is expressed to be brought under Section l A, 1B, and A of the Civil Procedure Act Cap 21 and Order 10 Rule 11 and Order 51 rule 1 of the Civil Procedure Rules. 3.The application is supported by the applicant’s own affidavit in which he has sworn that on 10 April 2025, he entered appearance in a suit filed against him by the plaintiff. The suit against him was for a liquidated claim of Kshs. 21,300,040/=. Subsequent to the memorandum of appearance, he filed a notice of preliminary objection objecting to the plaintiff’s suit. 4.On 28 April 2025, the plaintiff filed a request for judgment, apparently in default of a defence; the request was allowed and judgment entered against the defendant. 5.According to the applicant, judgment could not have been entered against him before his preliminary objection had been disposed of. It is solely for this reason that he has sought to have his application allowed. 6.The plaintiff opposed the application and, to that end, filed a replying affidavit in which she does not dispute the facts as sworn by the applicant except to state that she has been advised by her learned counsel, which advice she verily believes to be true, that the defendant was required to file his defence within fourteen days after he entered appearance to the plaintiff’s suit. 7.The respondent has also been informed by her learned counsel, which information she verily believes to be true, that the applicant, being an advocate of this Honourable Court for close to 15 years as at the time the replying affidavit was filed, ought to have known that the proper means of responding to a suit such as the one before court is by way of filing a defence. 8.It is also sworn that judgment against the applicant was entered regularly and no basis has been provided for the setting aside of the same. Even then, a draft defence exhibited to the applicant’s affidavit does not raise any triable issue. 9.Order 7 rule 1 of the Civil Procedure Rules provides as follows:DefenceWhere a defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit of service. 10.According to Order 10 Rule 4 (1), where in a liquidated claim a defendant does not enter appearance within the prescribed time, the court is enjoined to enter a judgment for the plaintiff if the plaintiff makes a request for such a judgment. This rule reads as follows:4.Judgment upon a liquidated demand(1)Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail so to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs. 11.It is not in dispute that the claim against the applicant was a liquidated claim. Although the applicant entered appearance and only failed to file a defence within the prescribed time, the plaintiff was still entitled to invoke this provision of the law to make a request for judgment and, on its part, the court was enjoined to accede to the request and enter judgment in default of defence because Order 10 Rule 10 provides that Order 10 rule 4 applies to cases where the defendant has failed to file a defence as much as it applies to those cases where no appearance has been made within the time stated in the summons to enter appearance. Order 10 Rule 10 reads as follows:10.Default of defenceThe provisions of rules 4 to 9 inclusive shall apply with any necessary modification where any defendant has failed to file a defence. 12.In the face of these provisions of the law, I agree with the respondent that there is nothing irregular about the judgment entered against the applicant. Order 2 rule 9 of the Civil Procedure Rules provides that a party may by his pleadings raise any point of law. If the applicant felt strongly that he had a point of law to raise against the plaintiff’s claim, he ought to have pleaded it in his defence in which event the court would have determined the issue as preliminary point of law. It was not open to him to disregard the mandatory provisions of Order 7 rule 1 of the Civil Procedure Rules and file a preliminary objection instead of a defence. 13.I am minded that under Order 10 rule 11 of the Civil Procedure Rules, the court is the court has discretion to set aside a judgment entered in default of defence. This provision of the law reads as follows:Setting aside judgmentWhere 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.Speaking of the discretion to set aside an ex parte judgment, the Court of Appeal in Waweru versus Ndiga (183) 1KLR 239 cited its own decision in Pithon W. Maina versus Mugiria (1982-88) 1 KAR 171, where it held that the court has unfettered discretion to do justice between the parties. And in Shah versus Mbogo (1968) EA 94, the court’s predecessor, the Court of Appeal for East Africa, held that while the court would exercise its discretion to avoid injustice or hardship resulting from inadvertence or excusable mistake or error, it would not assist a person who has deliberately sought to obstruct or delay the course of justice. 14.The applicant’s conduct would fall into this category of persons for two reasons; first, contrary to what the law provides, the applicant deliberately failed to file a defence ostensibly because he had filed a preliminary objection against the plaintiff’s suit; and, second, it is only after a draft decree was sent to the plaintiff for approval pursuant to order 21 rule 8(2) of the Civil procedure Rules that he filed the instant application. 15.This rather lackadaisical conduct on the part of the applicant does not endear him to the exercise of the court’s discretion in his favour. No case has been made for inadvertence of on his part and neither has it been suggested that failure to file the defence arose from excusable mistake or error. The applicant deliberately failed to file the defence. 16.For the reasons I have given the application is dismissed with costs to the plaintiff/ respondent. SIGNED, DATED AND DELIVERED ON 26 JUNE 2026NGAAH JAIRUSJUDGE