https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11793

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E541 OF 2025** **PENTAGON AGENCIES LTD………............................APPELLANT** **-VERSUS-** **JOYCE ADHIAMBO OBONGO…….........................RESPONDENT** *(Being an appeal from the Ruling and Order of Hon. H. A. Okello (SRM) delivered on 16th May 2025 in Nairobi Milimani CMCC No. E11409 of 2021****)*** **JUDGMENT** **Introduction** 1. This appeal arises from the Ruling of **Hon. H. A. Okello** (SRM) delivered on 16th May 2025 in **Nairobi Milimani CMCC No. E11409 of 2021** dismissing the Appellant's Notice of Motion dated 2nd October 2024 seeking, inter alia, to set aside the *ex parte* proceedings and judgment entered on 31st May 2024 and for leave to file its Statement of Defence out of time. 2. The appeal invites this Court to determine whether the learned trial magistrate properly exercised the judicial discretion conferred under **Order 10 Rule 11 of the Civil Procedure Rules** in declining to set aside a regularly entered *ex parte* judgment. The appeal further raises the question whether the explanation advanced by the Appellant that its advocates were erroneously mapped onto a parallel file in the Judiciary's then newly introduced e-filing system constituted sufficient cause to warrant the setting aside of the judgment and reopening of the suit for hearing on its merits. 3. The Appellant contends that the learned magistrate failed to appreciate that the omission to file a defence was occasioned by an inadvertent technological error beyond its control and consequently failed to exercise discretion judiciously. The Respondent, on the other hand, maintains that the judgment was regularly obtained after due service of summons, that the alleged technical hitch remained wholly unsubstantiated, and that the learned magistrate properly exercised his discretion in declining to aid an indolent litigant whose unexplained inaction spanned nearly four years. 4. The appeal was canvassed by way of written submissions, which this Court has carefully considered alongside the Record of Appeal, the impugned ruling, the pleadings and the applicable law. **Background** 1. The record shows that the Respondent, suing as the legal representative of the estate of the deceased, instituted **Nairobi Milimani CMCC No. E11409 of 2021** through a Plaint dated 25th September 2021. 2. In the Plaint, the Respondent pleaded that on or about **21st February 2021**, the deceased was lawfully riding motorcycle registration number **KMFK 574Z** along a public road when motorcycle registration number **KMFK 425G**, owned by the Appellant and/or being ridden by its authorised rider, was so negligently ridden, managed and controlled that it collided with the deceased's motorcycle. 3. It was pleaded that as a consequence of the collision, the deceased sustained severe bodily injuries from which he succumbed. The Respondent consequently sought damages under both the **Law Reform Act** and the **Fatal Accidents Act**, together with special damages, costs of the suit and interest. 4. Upon service of summons to enter appearance, the Appellant instructed advocates to defend the suit. Indeed, it is common ground that the Appellant entered appearance through a Memorandum of Appearance. However, no Statement of Defence was filed within the prescribed period or at all before the matter proceeded for formal proof. 5. Consequently, the suit proceeded undefended. The Respondent tendered evidence in support of her claim, following which the trial court entered judgment on **31st May 2024** in favour of the Respondent in the sum of **Kshs. 1,631,802**, together with costs and interest. 6. The Appellant does not dispute that it was duly served with summons to enter appearance. Its case, both before the subordinate court and before this Court, is that immediately after receiving instructions, its advocates embarked on the process of obtaining mapping onto the Judiciary's then newly introduced e-filing platform so as to enable them file the Memorandum of Appearance and Statement of Defence electronically. 7. According to the Appellant, although its advocates successfully uploaded the Memorandum of Appearance and Statement of Defence and thereafter served the same upon the Respondent's advocates, an inadvertent technical error resulted in the advocates being mapped onto an entirely different or parallel file, with the consequence that the pleadings never reflected in the correct court file. 8. The Appellant further contends that because the advocates did not receive any notifications from the Judiciary's e-filing portal and, upon periodically checking the portal, observed no apparent progress in the matter, they remained under the genuine but mistaken belief that the pleadings had been properly uploaded and that the matter was awaiting further directions. 9. The matter remained so until **1st October 2024**, when the Appellant was served with Warrants of Attachment and Sale of Movable Property dated **13th September 2024** issued through Dancy Auctioneers in execution of the decree arising from the judgment. 10. It was only after perusing the court file, according to the Appellant, that its advocates discovered that the matter had proceeded *ex parte* and judgment entered on **31st May 2024**, and further realized that the documents they believed had been uploaded had never found their way into the correct file. **Proceedings before the Trial Court** 1. Following discovery of the judgment, the Appellant promptly moved the subordinate court through a Notice of Motion dated **2nd October 2024**. 2. The application principally sought; 3. ***stay of execution of the judgment and decree;*** 4. ***setting aside of the ex parte proceedings and judgment delivered on 31st May 2024;*** 5. ***leave to file the Statement of Defence out of time; and*** 6. ***that the annexed draft Statement of Defence be deemed as duly filed upon payment of the requisite court fees.*** 7. The application was supported by an affidavit sworn on behalf of the Appellant explaining the circumstances under which its advocates allegedly became mapped onto a parallel electronic file. 8. The Appellant further asserted that its proposed Statement of Defence disclosed several bona fide triable issues, including the contention that it had sold and surrendered possession of the subject motorcycle before the occurrence of the accident, thereby raising substantial questions requiring determination through a full hearing. 9. The Respondent opposed the application through a Replying Affidavit dated **18th October 2024**. 10. She contended that the Appellant had admitted service of summons to enter appearance and had equally admitted instructing advocates shortly thereafter. According to the Respondent, once service was admitted, the resulting interlocutory judgment was regular and could only be disturbed upon sufficient cause being demonstrated. 11. The Respondent further deposed that despite entering appearance, the Appellant took no meaningful step towards defending the suit for close to four years. She maintained that the allegation of a technical hitch remained unsupported by any documentary evidence, correspondence, filing receipts, screenshots or material identifying the alleged parallel file. 12. It was further deponed that throughout the pendency of the proceedings the Appellant never communicated any difficulty to either the court or opposing counsel and only raised the issue after execution had commenced. 13. The Respondent therefore urged the subordinate court to decline the invitation to reopen litigation that had culminated in a lawful judgment after due process, arguing that doing so would occasion considerable prejudice to the estate of the deceased which had awaited justice since the institution of the suit in 2021. **The Impugned Ruling** 1. Upon considering the application, affidavits, rival submissions and the applicable law, the learned trial magistrate identified the principal issue for determination as whether sufficient cause had been established to warrant the setting aside of the *ex parte* judgment under **Order 10 Rule 11 of the Civil Procedure Rules**. 2. The learned magistrate appreciated that the discretion donated under **Order 10 Rule 11** is unfettered but must be exercised judicially and on settled principles. In that regard, the court relied on, among other authorities, ***Patel v E.A. Cargo Handling Services Ltd* (1974) EA 75** and ***Kenya Commercial Bank Ltd v Nyantange & Another* (1990) KLR 443**. 3. Having considered the explanation advanced by the Appellant, the learned magistrate found that although the Appellant alleged that its advocates had been mapped onto a parallel electronic file, it failed to furnish any particulars identifying that file or any documentary material demonstrating that pleadings had indeed been uploaded elsewhere. 4. The court further observed that no evidence was produced showing payment of filing fees, electronic filing confirmations, system-generated acknowledgments or any activity from the Judiciary's online platform to support the allegation of a technical hitch. 5. The learned magistrate consequently concluded that the explanation offered fell short of the evidentiary threshold necessary to justify the exercise of judicial discretion. 6. The court further found that the Appellant had failed to satisfactorily explain its prolonged inactivity over a period approaching four years and held that a diligent litigant exercising reasonable prudence would have undertaken follow-up measures to ascertain the progress of the suit. 7. Ultimately, the trial court found the application devoid of merit and dismissed it with costs to the Respondent. **The Appeal** 1. Aggrieved by that decision, the Appellant lodged the present appeal through a Memorandum of Appeal dated **19th May 2025**, raising four grounds which may be summarised as follows; 1. ***That the learned magistrate erred in fact and law by finding that the Appellant failed to provide proof of payment of filing fees and evidence of activities in the alleged parallel electronic file.*** 2. ***That the learned magistrate erred in finding that the Appellant failed to provide sufficient particulars identifying the parallel file upon which it alleged to have been mapped.*** 3. ***That the learned magistrate erred in concluding that the Appellant was indolent and had failed to offer sufficient explanation for the delay in filing its defence.*** 4. ***That the learned magistrate failed to properly evaluate the draft Statement of Defence, the evidence, submissions and authorities placed before the court before dismissing the application.*** 2. On the basis of those grounds, the Appellant prays that this Court allows the appeal, sets aside the ruling delivered on **16th May 2025**, grants leave to defend the suit, and awards the costs of both the appeal and the application before the subordinate court. **Submissions of the Parties** 1. The appeal was canvassed by way of written submissions. 2. Learned counsel for the Appellant submitted that the trial court failed to properly exercise its discretion and placed undue emphasis on procedural shortcomings at the expense of substantive justice. Counsel argued that the omission to file a defence arose from an excusable technological error during the implementation of the Judiciary's e-filing system and ought not to have been visited upon the Appellant. Reliance was placed on authorities including **Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123**, **CMC Holdings Ltd v Nzioki [2004] KLR**, **Belinda Murai & Others v Amos Wainaina [1978] KLR**, among others. The Appellant further submitted that the draft Statement of Defence disclosed arguable and triable issues deserving determination on the merits. 3. The Respondent, through submissions dated **16th February 2026**, opposed the appeal and urged this Court to uphold the ruling of the learned magistrate. Counsel submitted that the impugned judgment was a regular judgment entered after proper service of summons, which the Appellant expressly admitted. Reliance was placed on ***James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another* [2016] eKLR**. It was further argued that the Appellant had failed to establish sufficient cause for the exercise of the court's discretion, having remained inactive for nearly four years without producing any evidence whatsoever of the alleged technical hitch or parallel electronic file. The Respondent also relied on ***Shah v Mbogo & Another* [1967] EA 116**, ***Patel v E.A. Cargo Handling Services Ltd* [1974] EA 75**, ***Utalii Transport Company Ltd & 3 Others v NIC Bank Ltd & Another* [2014] eKLR**, ***Tree Shade Motors Ltd v D.T. Dobie & Another* [1995–1998] 1 EA 324**, and ***Mbogo & Another v Shah* [1968] EA 93**, urging the Court to find that the learned magistrate exercised his discretion properly and that there exists no basis for appellate interference. ### **Duty of the First Appellate Court** 1. This being a first appeal, this Court is enjoined to reconsider and re-evaluate the evidence that was placed before the subordinate court and arrive at its own independent conclusions. In undertaking that exercise, however, the Court remains alive to the fact that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. 2. The principles governing the jurisdiction of a first appellate court are now firmly settled. In ***Selle & Another v Associated Motor Boat Co. Ltd & Others* [1968] EA 123**, the Court of Appeal stated that a first appellate court is under a duty to reconsider evidence, evaluate it itself and draw its own conclusions, though always bearing in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. 3. The same principle was reiterated by the Court of Appeal in ***Peters v Sunday Post Ltd* [1958] EA 424**, where it was held that whilst an appellate court has jurisdiction to review the evidence in order to determine whether the conclusions reached by the trial court ought to stand, it should exercise caution before differing from findings of fact made by the trial court, particularly where such findings are based on the credibility of witnesses. 4. In the present appeal, however, the dispute does not concern contested oral evidence. Rather, the appeal arises from the exercise of judicial discretion in determining an interlocutory application. Consequently, the central question is not whether this Court would have arrived at a different conclusion, but whether the learned trial magistrate exercised that discretion upon sound legal principles. ### **Appellate Interference with Judicial Discretion** 1. It is now trite that an appellate court will not readily interfere with the exercise of judicial discretion by a trial court merely because it would itself have reached a different conclusion. 2. The governing principle was succinctly stated by the former Court of Appeal for Eastern Africa in ***Mbogo & Another v Shah* [1968] EA 93**, where Sir Charles Newbold P. held that: "...a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been injustice." 1. That principle has consistently been applied by the Kenyan Court of Appeal and remains good law. It underscores that judicial discretion is not to be substituted with the appellate court's own opinion simply because another conclusion is possible. 2. Accordingly, before this Court can interfere with the impugned ruling, it must be satisfied that the learned magistrate misapprehended the law, considered irrelevant matters, failed to consider relevant matters, acted on wrong principles, or reached a plainly wrong decision resulting in injustice. It therefore follows that unless one or more of those circumstances is established, the discretion exercised by the trial court ought not to be disturbed. ### **The Law on Setting Aside *Ex Parte* Judgments** 1. The application before the subordinate court was brought under **Order 10 Rule 11 of the Civil Procedure Rules**, which provides that; **"Where 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."** 1. The operative word under the Rule is **"may."** The provision does not confer an automatic right upon a defaulting litigant to have judgment set aside. Rather, it vests the court with a wide but judicial discretion which must be exercised upon settled principles and in furtherance of justice. 2. The leading authority on the exercise of that discretion remains ***Patel v E.A. Cargo Handling Services Ltd* [1974] EA 75**, where Duffus P. stated that: **"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."** 1. The Court in **Patel** further emphasized that where possible, disputes should ordinarily be determined on their merits rather than on procedural defaults, provided no prejudice incapable of compensation by costs will be occasioned to the opposite party. 2. Equally instructive is ***Shah v Mbogo & Another* [1967] EA 116**, where Harris J. explained the object of the discretion in the following terms: **"...to avoid injustice or 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."** 1. The foregoing authorities illustrate that the discretion is equitable in nature. It exists to relieve deserving litigants from genuine mistakes, but it is not intended to reward indolence, negligence or deliberate disregard of court process. ### **Regular and Irregular Judgments** 1. An equally important consideration concerns the nature of the judgment sought to be set aside. 2. The distinction between a regular and an irregular default judgment was comprehensively explained by the Court of Appeal in ***James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another* [2016] eKLR**, where the Court held that where there has been no proper service of summons, any judgment entered is irregular and must ordinarily be set aside *ex debito justitiae.* 3. Conversely, where summons have been properly served and the defendant fails to enter appearance or file a defence within the prescribed time, the resulting judgment is a **regular judgment**. 4. The Court of Appeal proceeded to hold that a regular judgment is not automatically set aside. Rather, the defendant must satisfy the court that sufficient cause exists to justify the exercise of discretion in his favour. 5. The significance of that distinction in the present appeal cannot be overstated. 6. Before both the subordinate court and this Court, the Appellant has expressly acknowledged that it was duly served with summons to enter appearance. 7. Indeed, the Appellant's own case is that upon service it immediately instructed advocates, who thereafter entered appearance and attempted to file a Statement of Defence through the Judiciary's e-filing system. 8. Consequently, there is no dispute regarding service of summons. 9. It therefore follows that the interlocutory judgment entered on **31st May 2024** was a **regular judgment** within the meaning of ***James Kanyita Nderitu (supra)*.** 10. That finding has an important legal consequence. 11. Since the judgment was regular, the Appellant bore the burden of placing before the trial court sufficient material demonstrating why the court ought to exercise its discretion in its favour. ### **Whether Mistake of Counsel Should Be Visited Upon a Litigant** 1. The Appellant has consistently urged this Court to find that any default arose solely from the mistake of its advocates and that such mistake ought not to be visited upon an innocent litigant. 2. There is considerable force in the principle that courts should not lightly punish litigants for genuine mistakes committed by their advocates. 3. In ***Philip Chemwolo & Another v Augustine Kubende* [1982-88] KAR 103**, Apaloo JA observed that: **"Blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on its merits."** 1. Similarly, in ***Belinda Murai & Others v Amos Wainaina* [1979] eKLR**, Madan J.A. famously stated that: "A mistake is a mistake. It is no less a mistake because it is an unfortunate slip." 1. However, those authorities do not establish that every mistake of counsel automatically entitles a litigant to relief. 2. The Court of Appeal has repeatedly emphasized that the mistake must be satisfactorily explained, must be genuine and excusable, and must be supported by credible evidence. More importantly, the court must consider the entire conduct of the defaulting party before exercising its discretion. 3. Consequently, the mere invocation of the phrase "mistake of counsel" does not relieve a litigant of the obligation to place before the court sufficient material demonstrating the nature of the mistake and why it prevented compliance with the rules of procedure. ### **Constitutional Imperatives** 1. The Appellant further invoked **Articles 50 and 159(2)(d)** of the Constitution, contending that denying it an opportunity to defend the suit infringed its constitutional right to a fair hearing. 2. There can be no dispute that **Article 50** guarantees every person the right to have disputes determined in a fair and public hearing before an independent and impartial court. 3. Equally, **Article 159(2)(d)** obligates courts to administer justice without undue regard to procedural technicalities. 4. However, as the Supreme Court observed in ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others* [2014] eKLR**, Article 159 was never intended to aid litigants who fail to comply with procedural requirements without reasonable explanation. The Court stated that procedural rules remain handmaidens of justice and are not to be disregarded altogether. 5. The constitutional command is therefore one of balance. Courts must avoid undue technicality, but they must equally safeguard the principles of orderly litigation, certainty and finality of proceedings. 6. Put differently, Article 159 does not operate as a blanket cure for every procedural omission, nor does it absolve parties from the obligation to act diligently in the conduct of litigation. ### **Issues for Determination** 1. Having carefully considered the Record of Appeal, the rival submissions, the impugned ruling and the applicable law, it is my respectful view that the appeal turns on the following issues; 1. ***Whether the learned trial magistrate misdirected himself in finding that the Appellant failed to prove the alleged e-filing technical hitch and the existence of a parallel electronic file.*** 2. ***Whether the learned magistrate erred in holding that the Appellant failed to demonstrate sufficient cause for the prolonged delay in filing its defence.*** 3. ***Whether the learned magistrate failed to consider the Appellant's draft Statement of Defence and whether it disclosed triable issues warranting the setting aside of the ex parte judgment.*** 4. ***Whether the learned magistrate improperly exercised the discretion donated under Order 10 Rule 11 of the Civil Procedure Rules.*** 5. ***Whether this Court should interfere with that exercise of discretion and grant the orders sought in the appeal.*** ## ****Analysis and Determination**** ### **Whether the Learned Trial Magistrate Erred in Finding that the Appellant Failed to Prove the Alleged E-filing Technical Hitch** 1. The first, second and third grounds of appeal are closely intertwined. They challenge the learned trial magistrate's findings that the Appellant failed to establish the alleged e-filing technical hitch, failed to demonstrate the existence of a parallel electronic file, and failed to provide a satisfactory explanation for the delay in defending the suit. These grounds shall therefore be considered together. 2. The Appellant contends that immediately upon being served with summons, it instructed advocates who entered appearance and prepared a Statement of Defence. It maintains that during the Judiciary's transition to the electronic filing platform, its advocates experienced a mapping error which resulted in the pleadings being uploaded onto a different electronic file. It was submitted that the omission was neither deliberate nor intended to obstruct the administration of justice, but was the result of an inadvertent technological mishap coupled with counsel's genuine belief that the pleadings had been successfully filed. 3. The Respondent, on the other hand, submits that the allegation remained wholly unsupported by evidence. It argues that no filing receipts, system-generated acknowledgements, screenshots, correspondence with the Judiciary or particulars of the alleged parallel file were produced before the trial court. Consequently, the Respondent urges this Court to uphold the finding that the explanation was incapable of displacing a regularly entered judgment. 4. I have carefully considered the rival submissions, the Record of Appeal and the impugned ruling. 5. There is no dispute that the Appellant was duly served with summons to enter appearance. Neither is there any dispute that it instructed advocates who entered appearance within time. The controversy begins after appearance was entered and concerns whether the subsequent failure to file a defence was the result of an excusable mistake or inexcusable neglect. 6. This Court takes judicial notice that when the Judiciary migrated from manual filing to mandatory electronic filing, both litigants and legal practitioners experienced challenges in navigating the newly introduced system. As with any technological transition, occasional operational difficulties were inevitable. 7. That said, judicial notice of the existence of such challenges does not relieve a party of the obligation imposed by **Sections 107 and 109 of the Evidence Act** to prove the specific facts upon which it relies. Ordinarily, a party alleging an electronic filing error would be expected to place before the court objective material demonstrating the existence of that error. 8. The learned trial magistrate therefore cannot be faulted for observing that no documentary evidence identifying the alleged parallel file, payment receipts, electronic acknowledgements or correspondence with the Judiciary had been produced. Those observations were supported by the record. 9. However, the inquiry ought not to have ended there. The application before the subordinate court was one seeking the setting aside of a regular *ex parte* judgment under **Order 10 Rule 11 of the Civil Procedure Rules**. Such an application calls upon the court to exercise a broad judicial discretion guided by the interests of justice and not merely by the sufficiency or otherwise of documentary proof. 10. An *ex parte* judgment presents a special situation. One party has obtained judgment without the participation of the other. Although such a judgment may be perfectly regular, the court must always exercise particular caution before declining an application to set it aside because the consequence is to permanently deny one party an opportunity to present its case. 11. That is not to say that every *ex parte* judgment should invariably be set aside. Were that the position, litigants and their advocates would have little incentive to diligently prosecute or defend their cases. Courts must guard against creating a precedent that rewards indolence or permits parties to ignore procedural obligations with the expectation that they will invariably be granted another opportunity. 12. Equally, courts must guard against the opposite danger of elevating procedural defaults above the fundamental objective of determining disputes on their merits where the circumstances disclose that the omission may have arisen from a genuine mistake rather than deliberate disregard of the court process. 13. The discretion conferred under **Order 10 Rule 11** exists precisely to enable courts to strike that delicate balance. Its object is to avoid injustice arising from accident, inadvertence or excusable mistake while ensuring that judicial process is not abused by litigants who deliberately ignore their obligations. 14. In the present case, although the Appellant did not produce documentary evidence conclusively proving the alleged e-filing anomaly, there is equally no suggestion that it deliberately ignored the proceedings after being served with summons. Indeed, the uncontested evidence shows that advocates were instructed, appearance was entered and a draft defence was prepared. Those circumstances lend some credibility to the explanation that the Appellant believed the necessary steps towards defending the suit had been taken. 15. I also attach considerable significance to the fact that immediately the Appellant became aware of the judgment through the execution process, it moved the court without delay. That conduct is not entirely consistent with a litigant who had consciously chosen to ignore the proceedings. Rather, it supports the Appellant's assertion that it genuinely believed its defence had been placed before the court. 16. While the learned magistrate was entitled to find that the explanation was not fully supported by documentary evidence, I respectfully take the view that excessive weight was placed upon that omission without sufficient regard to the broader question whether, in all the circumstances of the case, justice would be better served by allowing the dispute to be determined on its merits. 17. The discretion to set aside an *ex parte* judgment is intended to advance substantive justice. It should not be exercised in a manner that permanently shuts out a litigant where there exists a plausible explanation, however imperfectly documented, particularly where there is no evidence of deliberate disregard of the court process. 18. I am therefore persuaded that the learned trial magistrate approached the application from an unduly restrictive standpoint by treating the absence of documentary corroboration as effectively determinative of the application. In so doing, insufficient weight was accorded to the wider principles governing the exercise of discretion under O**rder 10 Rule 11**. 19. While the delay in the matter was undoubtedly considerable, I am not persuaded that it was, in the particular circumstances of this case, so inordinate or inexcusable as to justify forever shutting the Appellant out from defending the suit. 20. Consequently, I find merit in the first and second grounds of appeal. The learned trial magistrate did not properly balance the competing interests of the parties or the overriding objective of determining disputes on their merits. Appellate intervention is therefore warranted. **Whether the Learned Trial Magistrate Failed to Properly Consider the Draft Statement of Defence and Whether it Raised Triable Issues Warranting the Setting Aside of the Ex Parte Judgment** 1. The third ground of appeal faults the learned trial magistrate for allegedly failing to accord due consideration to the draft Statement of Defence annexed to the Appellant's application. The Appellant contends that the proposed defence disclosed bona fide triable issues which ought to have persuaded the court to exercise its discretion in favour of setting aside the *ex parte* judgment. 2. Learned counsel for the Appellant submitted that the intended defence was not a mere denial. It was argued that the Appellant specifically pleaded that it had disposed of the subject motorcycle prior to the occurrence of the accident and had relinquished possession and control thereof to a third party. According to the Appellant, the issues surrounding ownership, possession and liability could only be conclusively determined upon hearing evidence from all the parties. 3. The Respondent maintained that the mere existence of a draft defence could not, by itself, justify setting aside a regularly entered judgment. It was submitted that where judgment has been regularly obtained, the court must evaluate the explanation for the default, the conduct of the applicant, the length of delay, and the prejudice likely to be occasioned to the successful litigant before exercising its discretion. 4. I have carefully examined the draft Statement of Defence contained in the Record of Appeal alongside the impugned ruling. 5. The proposed defence raises several issues which cannot, at this stage, be dismissed as frivolous. In particular, the Appellant disputes ownership and control of the subject motorcycle at the time of the accident and pleads that it had transferred possession to another party before the occurrence of the accident. It also disputes negligence and liability. 6. Whether those assertions will ultimately succeed is not the question presently before this Court. Neither is it the function of an appellate court, at this interlocutory stage, to determine contested questions of fact or to assess the evidential strength of the proposed defence. 7. The proper inquiry is whether the defence raises bona fide issues deserving judicial investigation. 8. The law on this point is well settled. In ***Patel v E.A. Cargo Handling Services Ltd*** [1974] EA 75, the former East African Court of Appeal emphasized that the discretion to set aside an *ex parte* judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake and that, where a defence raises arguable issues, the court should ordinarily incline towards allowing the matter to proceed to trial. 9. Similarly, in ***CMC Holdings Ltd v Nzioki*** [2004] 1 KLR 173, the Court of Appeal reiterated that where a proposed defence raises even a single bona fide triable issue, the court should generally allow a defendant an opportunity to defend the suit unless there exist compelling reasons to decline such relief. 10. The rationale underlying these decisions is readily apparent. Courts exist to determine disputes after hearing both sides wherever that is reasonably possible. It is only after parties have been afforded the opportunity to present evidence, test each other's evidence through cross-examination and make submissions that the court can confidently pronounce itself upon disputed questions of fact and law. 11. This Court is particularly mindful that the judgment sought to be set aside was entered ex parte. Although such a judgment may be regular, it nevertheless determines the rights and liabilities of a party without that party having participated in the hearing. For that reason, where a proposed defence discloses genuine questions deserving judicial inquiry, courts ought to exercise considerable caution before declining to reopen the proceedings. 12. That is not to suggest that every draft defence automatically entitles a litigant to the setting aside of a regular judgment. If that were so, the procedural rules governing litigation would become meaningless and successful litigants would rarely enjoy the fruits of their judgments. The court must therefore balance the existence of a triable defence against all the surrounding circumstances of the case. 13. In the present appeal, however, I respectfully find that the learned trial magistrate did not accord sufficient weight to the nature of the defence presented. While the court correctly considered the Appellant's delay and the inadequacy of the evidence concerning the alleged e-filing anomaly, it appears that those considerations overshadowed the equally important question whether the dispute itself ought, in the interests of justice, to be determined after hearing both parties. 14. The issue of ownership and control of the motorcycle at the time of the accident is not peripheral. It lies at the very heart of the Respondent's claim and the Appellant's liability. If established, the defence has the potential to substantially affect the outcome of the suit. Such an issue cannot properly be characterised as frivolous, sham or intended merely to delay the proceedings. 15. I am therefore satisfied that the draft Statement of Defence discloses bona fide triable issues deserving ventilation at a full hearing. The learned trial magistrate ought to have attached greater weight to that consideration when exercising the discretion conferred under **Order 10 Rule 11** of the Civil Procedure Rules. 16. It bears repeating that the discretion to set aside an *ex parte* judgment is not exercised solely for the benefit of the defaulting party. It is exercised in the broader interests of justice. Justice is better served where disputes are determined after all parties have been heard, particularly where the proposed defence raises substantial issues that cannot fairly be resolved without the benefit of evidence. 17. I am alive to the fact that the Respondent has already obtained judgment and is entitled to enjoy the fruits thereof. That right is important and deserving of protection. Nevertheless, where the prejudice likely to be suffered by the Respondent can adequately be compensated by an award of thrown-away costs or appropriate conditions, whereas the prejudice to the Appellant would be the permanent loss of an opportunity to defend a claim involving substantial issues of liability, the scales of justice lean in favour of allowing the matter to be heard on its merits. 18. In the circumstances of this appeal, I am persuaded that the existence of the triable issues disclosed in the draft Statement of Defence, viewed together with the broader interests of substantive justice, outweighed the procedural defaults relied upon by the Respondent. 19. Consequently, I find that the learned trial magistrate did not properly balance the competing considerations before the court. The third ground of appeal therefore succeeds. **Whether Articles 50 and 159 of the Constitution Required the Trial Court to Set Aside the Ex Parte Judgment** 1. The Appellant further contends that by declining to set aside the *ex parte* judgment, the learned trial magistrate violated its constitutional right to a fair hearing guaranteed under **Article 50 of the Constitution**. It is further submitted that **Article 159(2)(d)** obligated the court to administer justice without undue regard to procedural technicalities and, therefore, to afford the Appellant an opportunity to defend the suit on its merits. 2. The Respondent, on the other hand, submits that constitutional guarantees cannot be invoked to excuse indolence or to relieve litigants from complying with procedural requirements. It is argued that the Appellant was duly served with summons, entered appearance and thereafter failed to take the necessary steps to defend the suit. Consequently, the Respondent contends that no constitutional violation arose. 3. I have carefully considered these competing arguments. 4. There can be no dispute that the right to a fair hearing under **Article 50 of the Constitution** occupies a central place in our constitutional order. It is one of the cardinal principles upon which the administration of justice is founded. Equally, **Article 159(2)(d)** requires courts to administer justice without undue regard to procedural technicalities while remaining faithful to the rule of law. 5. These constitutional provisions, however, do not exist in isolation. They must be applied in a manner that promotes justice to all parties appearing before the court. 6. The Respondent is correct that **Article 159** was never intended to abolish procedural rules. Indeed, the Supreme Court in ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others*** [2014] eKLR emphatically stated that Article 159 is not a panacea for every procedural omission and cannot be invoked to aid parties who deliberately disregard procedural requirements. 7. I respectfully adopt that principle. Procedural rules remain indispensable to the orderly administration of justice. They promote certainty, equality of treatment and predictability in litigation. 8. However, that is not the end of the matter. 9. The present appeal concerns an application to set aside an *ex parte* judgment. Such applications occupy a unique position in civil litigation because they require the court to balance two equally important principles. On the one hand is the principle that litigation must be conducted in accordance with established procedural rules. On the other is the equally fundamental principle that, wherever reasonably possible, disputes should be determined after all parties have been heard. 10. It is for that reason that courts have consistently held that an application to set aside an *ex parte* judgment must not be approached as though it were an ordinary application involving a mere procedural default. The court is called upon to exercise a judicial discretion whose ultimate objective is the attainment of substantive justice. 11. This Court is alive to the fact that once an *ex parte* judgment has been entered, one party has obtained judgment without the participation of the other. That circumstance, by itself, does not render the judgment irregular. Nevertheless, it requires the court to exercise particular care before declining to reopen the proceedings because the consequence is that one party will forever lose the opportunity to place its case before the court. 12. That does not mean that every litigant who fails to defend a suit is automatically entitled to have the judgment set aside. If courts were to adopt such an approach, procedural timelines would become meaningless, successful litigants would rarely enjoy the fruits of their judgments and indolence would inadvertently be encouraged. 13. Equally, courts must guard against the opposite danger of treating procedural defaults as an end in themselves. Justice is not served by shutting a litigant out where the circumstances demonstrate that the dispute can still be fairly determined without occasioning irreparable prejudice to the opposing party. 14. The discretion conferred under **Order 10 Rule 11** exists precisely because Parliament recognised that rigid adherence to procedural defaults may, in appropriate cases, produce injustice. The discretion enables the court to look beyond the default itself and consider whether the broader interests of justice require the dispute to be determined on its merits. 15. In the present appeal, there is no suggestion that the Appellant deliberately ignored the proceedings or intentionally sought to obstruct the administration of justice. The Appellant instructed advocates, entered appearance and maintained that it believed the defence had been uploaded through the Judiciary's electronic filing platform. Although that explanation was not fully supported by documentary evidence, neither can it be dismissed as inherently incredible, particularly bearing in mind the circumstances prevailing during the transition to electronic filing. 16. More importantly, the Appellant moved the court immediately upon learning of the judgment through the execution process. That conduct is consistent with a litigant seeking an opportunity to be heard rather than one intent on delaying justice. 17. I have also found that the proposed Statement of Defence raises bona fide triable issues touching on ownership of the subject motorcycle and the Appellant's liability. Those issues are substantial and ought, where reasonably possible, to be determined after hearing evidence from both parties. 18. I readily acknowledge that the Respondent has a legitimate expectation of enjoying the fruits of a judgment lawfully obtained. That right must not be diminished. Courts must always remain alive to the principle that litigation must, at some point, come to an end. 19. Nevertheless, the principle of finality must not be applied mechanically. It must be balanced against the equally compelling principle that, where justice can still be achieved by hearing both parties without causing irremediable prejudice, the court should lean in favour of determining disputes on their merits. 20. In the circumstances of this case, I am satisfied that any prejudice likely to be occasioned to the Respondent by reopening the proceedings can adequately be compensated through an appropriate award of thrown-away costs and suitable directions regarding the expeditious disposal of the suit. 21. By contrast, the prejudice to the Appellant if denied an opportunity to defend the suit would be final and irreversible. It would forever remain bound by a judgment on substantial issues of liability without having had the opportunity to present evidence in support of the defence which, as already found, raises bona fide triable issues. 22. Justice must always be even-handed. It is justice to the successful litigant that judgments lawfully obtained should not be disturbed without good reason. It is equally justice to a party seeking to defend a claim that, where the circumstances justify it, the dispute should be determined after both sides have been heard. The duty of the court is to balance those competing interests in a manner that best serves the ends of justice. 23. With tremendous respect to the learned trial magistrate, I am persuaded that greater weight ought to have been accorded to the constitutional imperative of affording parties a reasonable opportunity to ventilate substantial disputes on their merits. While the learned magistrate correctly identified the applicable legal principles, the exercise of discretion in the peculiar circumstances of this case did not sufficiently accommodate the overarching objective of substantive justice. 24. I therefore find that the constitutional values underpinning **Articles 50 and 159**, when considered together with the existence of bona fide triable issues, the explanation advanced by the Appellant, and the absence of irreparable prejudice to the Respondent, weigh in favour of setting aside the *ex parte* judgment. 25. Accordingly, I find that the Appellant's constitutional arguments are well-founded, and this ground of appeal succeeds. ### **Whether the Learned Trial Magistrate Properly Exercised His Discretion and Whether this Court Should Interfere with that Exercise of Discretion** 1. Having independently re-evaluated the entire Record of Appeal, the impugned ruling, the rival submissions, the applicable law and the authorities cited by the parties, the ultimate question for determination is whether the learned trial magistrate exercised the discretion conferred under **Order 10 Rule 11 of the Civil Procedure Rules** judiciously and, if not, whether this Court ought to interfere with that exercise of discretion. 2. It is now settled law that the jurisdiction to set aside an *ex parte* judgment is discretionary. Equally settled is the principle that an appellate court will not interfere with the exercise of that discretion merely because it would itself have reached a different conclusion. As was stated in ***Mbogo & Another v Shah*** [1968] EA 93, interference is only justified where the trial court misdirected itself in law, took into account irrelevant considerations, failed to consider relevant matters, or where the decision is plainly wrong and has resulted in injustice. 3. I respectfully adopt those principles. Judicial discretion is never exercised in the abstract. It must be exercised upon sound legal principles, after considering all the circumstances of the particular case, and always in a manner that advances rather than defeats the ends of justice. 4. The record demonstrates that the learned trial magistrate considered several relevant factors, including the regularity of the judgment, the explanation advanced regarding the alleged e-filing anomaly, the absence of documentary evidence in support of that explanation, the period of delay, the authorities cited by the parties and the prejudice likely to be occasioned to the Respondent. 5. Those were undoubtedly proper considerations. However, the exercise of discretion under **Order 10 Rule 11** does not end with identifying procedural defaults. The court must ultimately ask itself whether, considering the totality of the circumstances, the interests of justice would be better served by maintaining the ex parte judgment or by allowing the dispute to proceed to a hearing on its merits. 6. In my respectful view, that broader inquiry did not receive the weight it deserved. The learned trial magistrate placed considerable emphasis on the Appellant's inability to conclusively demonstrate the alleged e-filing error and the period of inactivity that followed. While those matters were relevant, they ought to have been balanced against equally significant considerations which emerge from the record. 7. First, the Appellant did not ignore the proceedings from the outset. It instructed advocates immediately upon service of summons, entered appearance and prepared a defence. Secondly, upon learning of the judgment during execution, it moved the court with commendable promptitude. Thirdly, the draft Statement of Defence raises substantive and bona fide triable issues touching on ownership of the subject motorcycle and liability for the accident. Those issues are neither idle nor frivolous and deserve judicial interrogation. 8. This Court is particularly persuaded by the fact that the judgment sought to be set aside is an *ex parte* judgment. Courts must exercise great caution before declining to reopen such proceedings because the consequence is that one party will be permanently denied the opportunity to present its case. That is a grave consequence which should only be sanctioned where the circumstances clearly justify it. 9. At the same time, this Court is equally alive to the danger of creating a precedent that encourages litigants or their advocates to disregard procedural obligations in the expectation that courts will invariably come to their aid. Judicial discretion should never become a refuge for indolence or deliberate inaction. 10. The task of the court, therefore, is to strike a careful balance between those competing considerations. Every application to set aside an *ex parte* judgment must be determined on its own peculiar facts. There can be no universal rule. The court must ask whether the default arose from deliberate disregard of the court process or whether the circumstances disclose a genuine mistake which, though perhaps not perfectly explained, should not forever shut a litigant out from the seat of justice. 11. In the present appeal, I am not persuaded that the Appellant's conduct demonstrates a deliberate intention to obstruct or delay the course of justice. Although the explanation regarding the electronic filing process was not conclusively established through documentary evidence, the surrounding circumstances do not disclose wilful disregard of the proceedings. Rather, they disclose a litigant whose advocates believed that the necessary procedural steps had been taken and who only discovered otherwise after execution had commenced. 12. The learned trial magistrate was entitled to question the sufficiency of the explanation advanced. However, having found that the proposed defence disclosed substantial triable issues, and bearing in mind the constitutional imperative that disputes should, where possible, be determined on their merits, I am persuaded that the balance ought to have tilted in favour of affording the Appellant an opportunity to defend the suit. 13. This Court is satisfied that the prejudice likely to be suffered by the Respondent can adequately be compensated by an award of thrown-away costs and by imposing timelines for the expeditious hearing and determination of the suit. On the other hand, declining to set aside the judgment would permanently deprive the Appellant of the opportunity to contest a claim in respect of which it has disclosed a defence raising arguable questions of fact and law. 14. In those circumstances, I find that the learned trial magistrate, though properly directing himself on the applicable principles of law, did not accord sufficient weight to the overarching objective of substantive justice and the need to determine disputes on their merits where that can be achieved without occasioning irremediable prejudice to the opposing party. 15. Consequently, this is one of those exceptional cases in which appellate intervention is justified. I am satisfied that the discretion exercised by the learned trial magistrate resulted in an outcome that was unduly restrictive in the peculiar circumstances of this case and that the interests of justice require this Court to interfere with that exercise of discretion. **Final Determination and Orders** 1. Having carefully reconsidered the record of appeal, the rival submissions and the applicable law, this Court is mindful that the discretion donated under **Order 10 Rule 11** exists to ensure that, wherever reasonably possible, disputes are determined on their merits rather than by default. The court must therefore strike a careful balance between the right of a successful litigant to enjoy the fruits of a regular judgment and the equally important right of a party who has not been heard to be accorded an opportunity to present its case where justice so demands. 2. The discretion conferred under Order 10 Rule 11 is deliberately wide because every case turns on its own peculiar facts. That discretion is intended to prevent injustice arising from accident, inadvertence or excusable mistake while at the same time discouraging litigants who deliberately obstruct or delay the course of justice. The court must therefore examine not only the conduct of counsel but also whether there is evidence demonstrating that the litigant personally contributed to the default. 3. As already found, apart from the depositions contained in the supporting affidavit, no documentary or electronic evidence was tendered before the trial court to demonstrate the alleged mapping onto a parallel file, the filing of pleadings therein, or any efforts made to rectify the alleged anomaly. Equally, the prolonged inactivity spanning several years remained substantially unexplained. 4. Although the Appellant's draft Statement of Defence raises arguable issues concerning ownership and liability, those issues cannot be considered in isolation. The exercise of discretion under **Order 10 Rule 11** requires the court to evaluate the totality of the circumstances, including the explanation for the default, the conduct of the parties, the length of delay, the prejudice likely to be occasioned to each party and the overarching interests of justice. 5. In considering whether the learned magistrate properly exercised that discretion, this Court has also asked itself whether the failure to defend the suit was attributable solely to the advocates on record or whether there was evidence demonstrating that the Appellant itself deliberately chose not to participate in the proceedings. That distinction is important because the general principle remains that mistakes of counsel should not ordinarily be visited upon an innocent litigant unless the litigant is shown to have been complicit in or responsible for the default. 6. Although there was undeniably a prolonged period of inactivity following the filing of the Memorandum of Appearance, the record does not disclose any evidence that the Appellant itself deliberately abandoned its defence or instructed its advocates not to act. Equally, there is no material showing that the Appellant knowingly participated in the delay. In such circumstances, the Court must exercise caution before allowing the omissions of counsel alone to permanently shut a litigant out from the seat of justice. 7. This Court is equally alive to the fact that an *ex parte* judgment places the unsuccessful party in a unique position because the dispute has never been determined after hearing both sides. While regular judgments deserve respect and finality, courts have consistently recognised that, where circumstances permit, disputes ought as far as possible to be resolved after each party has had an opportunity to present its case. The objective is not to reward indolence but to promote substantive justice. 8. Even where the court is satisfied that a regular *ex parte* judgment ought to be set aside, the successful litigant need not be left without protection. The prejudice occasioned by reopening the proceedings may appropriately be addressed through reasonable conditions such as payment of thrown-away costs, provision of security or deposit of part or all of the decretal amount within a specified period. Such conditions safeguard the Respondent while simultaneously preserving the Appellant's right to be heard. 9. The critical question therefore is not merely whether the learned magistrate considered relevant factors, but whether sufficient weight was accorded to the overarching objective of determining disputes on their merits, particularly where the record does not demonstrate deliberate inaction on the part of the litigant himself. 10. **Article 50 of the Constitution** guarantees every person the right to have disputes determined after a fair hearing, while **Article 159(2)(d)** enjoins courts to administer justice without undue regard to procedural technicalities. Although these provisions do not excuse indolence or disregard of procedural rules, they require courts to lean, where justice permits, towards sustaining rather than terminating litigation without a hearing on the merits. 11. Although the learned magistrate considered the relevant factors, this Court is persuaded that insufficient weight was accorded to the absence of evidence demonstrating that the Appellant itself deliberately failed to defend the suit. In the peculiar circumstances of this case, and bearing in mind the constitutional preference for determining disputes on their merits, this Court is satisfied that the discretion ought to have been exercised in favour of setting aside the *ex parte* judgment upon appropriate terms. **Disposition** 1. ***The appeal succeeds.*** 2. ***The ruling dismissing the application to set aside is set aside.*** 3. ***The interlocutory judgment is set aside.*** 4. ***The Appellant shall file and serve its defence within 14 days.*** 5. ***The suit shall thereafter be heard and determined on priority before a magistrate of competent jurisdiction other than the learned trial magistrate who delivered the impugned ruling.*** 6. ***As the Respondent was not responsible for the circumstances giving rise to this appeal and had lawfully obtained the judgment before the subordinate court, justice demands that she be compensated for the inconvenience occasioned by reopening the proceedings. Accordingly, the Appellant shall pay the Respondent thrown-away costs of Kshs. 10,000.*** 7. ***Each party shall bear its own costs of this appeal, the Court being satisfied that such an order best serves the interests of justice in the peculiar circumstances of this case.*** 8. ***In default of compliance with the above conditions, the ex parte judgment shall automatically stand reinstated.*** 9. Orders accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JULY, 2026.** **HON L P KASSAN** **JUDGE**