https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1371

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI APPEAL NUMBER E331 OF 2025 SIMON MWAURA NGANGA…………………………....................................................APPELLANT -VERSUS- HANNAH NYAGICHUHI MBUGUA............................................................................RESPONDENT *(Being an Appeal from the* *Judgment and Decree of the Hon. M.W. Kinyanjui (SPM) delivered on 31st January 2022 in Kiambu MCELRC No. E001 of 2017)* CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Appellant filed an appeal against the Judgment and Decree of the Hon. M.W. Kinyanjui (SPM) delivered on 31st January 2022 in Kiambu MCELRC No. E001 of 2017 between the parties. Interestingly, the appellant never sought any prayers in the filed Memorandum of Appeal dated the 30th September 2025. GROUNDS OF THE APPEAL 1. The Honourable Trial Magistrate erred in fact and in law by failing to address the mental and legal capacity of the Respondent to file and prosecute the application dated 13th June 2023 seeking to set aside the interlocutory judgment. 2. The Learned Magistrate erred in fact by failing to consider the mental status report of the Respondent dated 23rd January 2023 from Mathare National Teaching and Referral Hospital. 3. The Learned Magistrate erred in fact and law by setting aside the interlocutory judgment entered against the Respondent on 24th May 2021 in Kiambu CMEL E001 of 2021, Simon Mwaura Nganga vs Hannah Nyagichuhi Mbugua. BACKGROUND TO THE APPEAL 1. The Claimant/Appellant filed a claim against the Respondent vide a memorandum of claim dated the 4th of September 2020 seeking the following orders: - 2. An amount of Kshs. 1,309,927.00 being special damages; 3. Aggravated/exemplary damages for the mental anguish suffered by the Claimant and his family; 4. General Damages; 5. An order for issuance of a certificate of service; 6. Costs of this suit. 7. Interest on (a), (b), (c) and (e) above at the Honourable Court's rates. 8. Such other or further relief as, in its judgment, the Honourable Court may deem just to award in favour of the Claimant. (pages 4-6 of Appellant’s ROA dated 4th February 2026) 1. The Claimant filed his list of witnesses dated 4th September 2020; witness statements of Monicah Wanjiku Kinyanjui, Alice Wanjiru Njagi, Lucy Njoki Kimani, and a list of documents of all even date with the bundle of documents attached (pages 8-20 of ROA). 2. The Claimant filed a request for judgment dated 24th February 2021 and again dated 26th April 2021. The court held a formal proof hearing of the matter on 13th November 2021, and entered interlocutory judgment in favour of the Claimant/Appellant on 31st January 2022 (pages 24-41 of ROA). 3. Vide an application dated 13th June 2022, the Respondent sought an order that the default judgment dated 31st January 2022 be set aside and that she be granted leave to file her defence and defend the suit out of time, stating that she failed to enter appearance due to suffering from dementia, a mental condition which caused her to fail to appreciate the significance of the documents served (pages 42-70 of ROA). 4. The Appellant responded to the application vide a Replying Affidavit sworn on 25th July 2022, where he cast doubt that the Applicant indeed suffered from dementia, requested the court to carry out an inquiry into the Applicant’s mental capacity, and insisted that service was properly effected (pages 71-80 of ROA). 5. After the oral hearing of the matter on 3rd October 2022 and submission of the Applicant to medical examination at Mathari National Hospital (pages 121-127 of ROA), the Trial Magistrate delivered a ruling in the matter on the 30th of October 2023 setting aside the default judgment entered on 31st January 2022, with costs (judgment on pages 137-145 of ROA). DETERMINATION 1. The appeal was canvassed through written submissions. Only the Appellant filed. Issues for determination 1. In his submissions dated 6th February 2026, the Appellant submitted generally on the appeal. 2. The court on perusal of the grounds of appeal was of the opinion that the issue for determination was whether the appeal was merited. The appellant’s submissions 1. The instant appeal arises from the ruling delivered by Hon Manuel Kinyanjui (SPM) on 30th October 2023 that allowed the application dated 14th June 2022 filed by the Respondent and set aside the interlocutory judgment entered on this matter on 31st January 2022. The application was filed by the firm of Messr TM Kuria & Co. Advocates supported by the affidavit of the Respondent herself. Paragraph (1) of the supporting affidavit stated as follows: 'THAT I am an adult female of sound mind, a resident of Kiambu County within the Republic of Kenya' thus raising the presumption that the Respondent was mentally fitted to swear the said affidavit. She proceeded to argue on paragraph (4) and (5) that she was suffering from dementia and hypertension and was of frail health and therefore could vividly recall being served but forgot to handover the said documents to her advocate due to her forgetfulness. The said application was supported by a medical report by HNM1 that was neither produced nor accepted by the Claimant. As a result of the said dispute as to the authenticity of the report, the trial court ordered that the Respondent be examined by a medical doctor ie psychiatrist on 3rd October 2022. The Respondent was examined and a medical report was issued from Mathari National Teaching and Referral Hospital forming page 83 to 85 of the record of appeal. The said Medical report was executed by one Dr Mucheru Wangombe and dated 23rd January 2023. It stated amongst others with Reference to the Respondent: '....Disoriented in time and place; however knows her name. He has no recollection of the claimant, a case in court, auctioneers coming to her residence, ..she is NOT able to follow court proceedings or enter into any contract now or on the future'. The medical report further stated that the Respondent had dementia two years before which translates to before the time the suit was filed. It is evident that the Respondent did not have the capacity to institute the suit and the same was evident even to her advocate and therefore the application to set aside the judgment should gave been filed by the guardian to the Respondent. The parties filed their submissions and the Claimant insisted that the Respondent's application should be dismissed for lack of capacity whilst the advocate for the Respondent argued that he should be granted leave to substitute. The trial court therefore erred in considering the application dated 13th June 2022 on merit whilst very serious issues had been raised and argued by counsels on the capacity of the applicant to institute the same given her mental state. The Trial court absolutely ignored and deemed inconsequential the Mathare National Teaching and Referral Hospital report dated 23rd January 2023 which she had ordered and it was therefore unfair and unjust to proceed. The Learned Trial Court also ventured into an attack on the Auctioneer's sale of household goods. It is evident from the proceedings and pleadings that the Respondent's goods were auctioned on 13th June 2022 and not 15th June. It was therefore erroneous for the court to hold that the sale was illegal especially considering that the service of the orders was done at 1pm on 15th June 2023. The court rushed to make a decision on the sale of the goods without considering the validity of the application before it. In MMM vs AMK (2016) e KLR, Justice John M Mativo held that old age, ill health and senile dementia fell under Order 32 Rule 15 of the Civil Procedure Rules 2010 that provides, 'The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.' The learned Judge acknowledged that senile dementia though not a mental illness as defined under section 2 of the Mental Health Act Cap 248 Laws of Kenya, it is an umbrella term for a group of cognitive disorders typically characterized by memory impairment, as well as marked difficulty in the domains of language, motor activity, object recognition, and disturbance of executive function - the ability to plan, organize, and abstract. Generally speaking, dementia is an illness of older adults. Order 32 rule (2)(1) provides, 'Where a suit is instituted by or on behalf of a minor without a next friend the defendant may apply to have the suit dismissed with costs to be paid by the advocate or other person by whom it was presented.' Order 32 rule 5 provides, '(1) Every application to the court on behalf of a minor, other than an application under rule 10(2), shall be made by his next friend or by his guardian ad litem. (2) Every order made in a suit or on any application before the court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian ad litem, as the case may be, may be discharged, and, where the advocate of the party at whose instance such order was obtained, knew, or might reasonably have known, the fact of such minority, with costs to be paid by such advocate.' It is clear from the wording of the law that a person of mental infirmity cannot make any applications without a next of friend or legal guardian and in fact orders if any made to such a person without following the proper procedure should be DISCHARGED and the advocate burdened with the payment of costs. It is only fair that the said decision by Hon Manuela Kinyanjui SPM delivered on 30th October 2023 is set aside. 2. The appellant further submitted that the failure to extract a Decree cannot defeat the cause of justice. In Daniel Chege Mwangi V Del Monte Kenya Ltd [2002] KEHC 853 (KLR) where the court held- ‘ That there is ..no order or decree extracted from the ruling of the Magistrate now in dispute in this appeal is neither here nor there as the appeal makes sense in its present form. Relevant documents relating to the ruling in dispute are on the file and make sense such that the appellate court can decide the appeal without much difficulty.’ That the Appeal be allowed and the court be pleased to set aside the judgment and consequential orders of the learned Hon Manuela Kinyanjui SPM delivered on 30th October 2024. I upheld the decision to apply to the instant appeal. 3. The respondent did not file written submissions Decision 1. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 2. The grounds of appeal were - 1. The Honourable Trial Magistrate erred in fact and in law by failing to address the mental and legal capacity of the Respondent to file and prosecute the application dated 13th June 2023 seeking to set aside the interlocutory judgment. 2. The Learned Magistrate erred in fact by failing to consider the mental status report of the Respondent dated 23rd January 2023 from Mathare National Teaching and Referral Hospital. 3. The Learned Magistrate erred in fact and law by setting aside the interlocutory judgment entered against the Respondent on 24th May 2021 in Kiambu CMEL E001 of 2021 Simon Mwaura Nganga vs Hannah Nyagichuhi Mbugua. 3. I combined grounds 1 and 2 as regards the mental capacity of the respondent. The appellant obtained a default judgment in default of appearance where he was awarded Kshs. 865,416 in favour of the respondent on the 31st January 2022. The process of execution began leading to the application by the respondent dated 13th June 2022 by way of Notice of Motion which sought for the following orders- 1. THAT Pending the hearing of this Application inter partes a temporary stay of execution order be issued against the decree issued herein, restraining the claimants from disposing the respondents household goods by public auction and the claimant's agents be directed to restore the Respondent's household goods attached on 3rd June 2022. 2. THAT Pending the hearing of this suit inter partes a temporary stay of execution order be issued against the decree issued herein, restraining the claimants from disposing the respondents household goods by public auction and the claimant's agents be directed to restore the Respondent's household goods attached on 3rd June 2022. 3. THAT the ex-parte Judgement entered herein on 31st January 2022 be set aside. 4. THAT the Applicant be granted leave to file her defence and defend the Suit out of time. 5. THAT the costs of this application be provided for. 4. The relevant grounds of the application as relates to the instant appeal were- 1. THAT that the Claimants filed this Suit against the Respondent who failed to enter appearance and defend this matter. 2. THAT the Respondent who is a senior citizen aged 87years has been sickly suffering from Dementia and Hypertension, and has been bedridden thus was unable to attend to this matter. She consequently forgot about this case due to her prevailing medical condition. 3. THAT unknown to her, this matter proceeded to conclusion and substantial final orders were issued. An ex-parte Judgement was entered and a subsequent decree which is currently in the execution process. 4. THAT the Claimant further obtained adverse orders on 2nd June 2022 against the Respondent which directed the Officer Commanding Police Station or Administration police officer in charge of Tigoni police Division to oversee execution of the decree. 5. THAT the Respondent's failure to attend to this matter was as a result of sickness which was beyond her control. 6. THAT the Claimant has since attached the Respondent's household goods and is likely to dispose them by public Auction unless restrained by this honourable court. 5. The issue of sickness was contested leading to medical assessment and report as follows:- ‘’MINISTRY OF HEALTH MATHARI NATIONAL TEACHING & REFERRAL HOSPITAL……… Date: 23 January, 2023. The Chief Magistrate's Court KIAMBU. RE: SIMON MWAURA NGANGA VERSUS HANNAH NYAGICHUHI MBUGUA MCELRC E001 OF 2021 I have today examined the respondent. She was in the company of her two (2) daughters: Nancy Wambui Mbugua ID No. 3354437 and Eunice Mbugua (No Identification on her). She was previously evaluated at this facility on 17.10.2022 and 31.10.2022 CT Scan Brain- Normal (16th January, 2023) Kidney Functions-Normal (16th January, 2023) The respondent is a known Hypertensive (last 10 years) and has Dementia (Last two years). She has to be assisted to bath and wash her clothes. On Examination Is ambulant, normal gait. Mental Status Examination Appears well groomed Eye contact: Maintained Rapport: Not established: repetitive speech pleading for help Disoriented in time and place: however, knows her name. He has no recollection of the claimant, a case in court, auctioneers coming to her residence. Opinion Dementia is a chronic, progressive irreversible condition characterized by memory loss and inability to acquire new memories. She is NOT able to follow court proceedings or enter into any contract now or in the future. 23 January 2023 DR. MUCHERU WANG'OMBE (SPECIALIST PSYCHIATRIST) FOR: MEDICAL SUPERINTENDENT’’ 1. The trial court, on the issue of whether to set aside the exparte judgment held as follows- ‘Whether this Court should set aside the judgement dated 31st January 2022?. ………. The Respondent had claimed they were not properly served and their defence raised triable issues. On matters service, a perusal of the court records indicate that the Respondent were made aware of this suit and proper service effected upon them. concerning the raising of triable issues, the Respondent filed their intended statement of defence among the supporting documents in the application. In this issue, I am guided by the decision in Kenya Commercial Bank Ltd vs Nyantange &Another (1990) KLR 443 where Bosire J, (as he then was) held that: - "Order IXA rule 10 of the Civil Procedure Rules donates a discretionary power to the court to set aside or vary an ex-parte judgment entered in default of appearance or defence and any consequential decree or order upon such terms as are just." The principle that emerges from the above cited case is that the discretion of a court to set aside or vary ex-parte judgment entered in default of appearance or defence is a free one and is intended to be exercised to avoid injustice or hardship but not to assist a person guilty of deliberate conduct intended to obstruct or delay the course of justice. This was the position that was adopted in Rayat Trading Co. Limited vs Bank of Baroda & Tetezi House Ltd [2018] eKLR where the court listed the matters to be considered in the exercise of this discretion as follows: - i. the defendant has a real prospect of successfully defending the claim; or it. it appears to the court that there is some other good reason why; iii. the judgment should be set aside or varied; or iv. the defendant should be allowed to defend the claim. Crucially, the Respondent has filed an intended statement of defense as part of the supporting documents in this application. In this statement, she asserts that, based on a verbal agreement, the Claimant was to be paid on a weekly basis, thereby challenging the foundation of the Claimant's case. Furthermore, she argues that the injury suffered by the Claimant occurred outside of working hours and during the performance of personal duties, a contention that directly contests the Claimant's claim. While the judgment entered may appear regular on its face, the Respondent's defense, as outlined above, presents substantial and substantive issues that deserve thorough examination. The triable issues, including payment terms and the circumstances of the injury, are pivotal to determining the ultimate outcome of the case. In this context, the Respondent's defense, as argued and supported by the intended statement of defense, holds the potential to avert any potential injustice that may have arisen from the ex-parte judgment. The Respondent has substantiated their position that their defense raises triable issues. In conclusion, considering the totality of circumstances and the legal principles governing the setting aside of ex-parte judgments, the Respondent has convincingly demonstrated that their defense has indeed raised triable issues warranting the setting aside of the judgment entered on 31st January 2022. The principles of justice and fairness underscore the need for a fair hearing to ensure that the merits of the case are fully examined’’. 1. The court finds that the trial court’s decision was not based on the mental status of the respondent but on the draft defence raising triable issues. The court finds that the trial court exercised its discretion applying the law and authority in Rayat Trading Co. Limited vs Bank of Baroda & Tetezi House Ltd [2018] eKLR where the court listed the matters to be considered in the exercise of this discretion as follows: - i. the defendant has a real prospect of successfully defending the claim; or it. it appears to the court that there is some other good reason why; iii. the judgment should be set aside or varied; or iv. the defendant should be allowed to defend the claim.’ In that decision Justice Nzioka cited England and Wales Court of Appeal(Civil Division) decision as follows-‘ in Thorn PLC v Macdonald [1999] CPLR 660, the Court of Appeal stipulated the following guiding principles: (a) while the length of any delay by the defendant must be taken into account, any pre-action delay is irrelevant; (b) any failure by the defendant to provide a good explanation for the delay is a factor to be taken into account, but is not always a reason to refuse to set aside; (c) the primary considerations are whether there is a defence with a real prospect of success, and that justice should be done; and (d) prejudice (or the absence of it) to the claimant also has to be taken into account.’ The court upheld the decision of the High Court to apply in the instant appeal. 1. The court on first appeal is guided principles for appeal decisions in Mbogo V Shah [1968] EA Page 93 De Lestang V.P (As He Then Was) Observed At Page 94: “I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’ The decision of the lower court was grounded on finding triable issues raised and being satisfied to exercise discretion in favour of the respondent. On whether the applicant had legal capacity to file the application based on the medical report from Mathari National Teaching & Referral Hospital it is the opinion of this court that it has no capacity to interpret the medical opinion of the doctor. It was evident that the application before the trial court was made by the respondent. The trial court was persuaded to exercise its discretion with reasons. There is no evidence that the trial court misdirected itself or it has acted on matters on which it should not have acted. The failure of the trial court to consider the medical report in the application is not a basis to interfere with the decision which is based on sound reasons of fair hearing and triable defence. The court finds the decision of the trial court is consistent with Article 159 (2)d) of the Constitution that – ‘justice shall be administered without undue regard to procedural technicalities; and’’ The appellant relied on the decision in MMM vs AMK (2016) e KLR, where Justice John M Mativo held that old age, ill health and senile dementia fell under Order 32 Rule 15 of the Civil Procedure Rules 2010 that provides, 'The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.' The learned Judge acknowledged that senile dementia though not a mental illness as defined under section 2 of the Mental Health Act Cap 248 Laws of Kenya, it is an umbrella term for a group of cognitive disorders typically characterized by memory impairment, as well as marked difficulty in the domains of language, motor activity, object recognition, and disturbance of executive function - the ability to plan, organize, and abstract. Generally speaking, dementia is an illness of older adults.’ In the instant case, there is no evidence of an application before the court to declare the respondent incapable of defending the suit on the basis of the medical report. The trial court rightly failed to rely on the said medical report. The court finds that even if the report was applied, that would have still be a basis to set aside the exparte judgment for lack of opportunity to defend. 1. Consequently, the appeal is without merit and is dismissed. The appeal was not defended. I make no order as to costs. The suit should proceed to a conclusion before the trial court. 2. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026. JEMIMAH KELI JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant – Kibebo Respondent – absent