https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8155

Board of Management, Kangema High School v Gachira t/a Falfaly General Services (Civil Appeal E004 of 2024) [2026] KEHC 8155 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8155 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E004 of 2024 TW Ouya, J June 11, 2026 Between The Board of Management, Kangema High School Appellant and Francis Wachiuri Gachira T/A Falfaly General Services Respondent Judgment 1.Before this Court for consideration is the Appellant's Memorandum of Appeal dated 2nd February 2024 seeking the following Orders as against the Respondent:i.That the Appeal be allowed with costs.ii.That this Honourable court does set aside the ruling and order of the Honourable Magistrate and substitute therefor an order allowing application dated 23/10/2023 with costs. 2.The Appeal is founded on the following five (5) grounds:i.That the learned magistrate erred in fact and in law in failing to fully consider and thoroughly analyse all the evidence presented before him by the appellant.ii.That the learned magistrate erred in fact and in law in failing to find that the appellant’s former advocates had made mistakes in their handling of the suit before court.iii.That the learned magistrate erred in fact and in law and misdirected himself on how to treat the mistakes made by the appellant’s former advocates.iv.That the learned magistrate erred in fact and in law in failing to consider the submissions made before him, and in failing to consider the binding case law laid before him, by the appellant.v.That the learned magistrate erred in fact and in law in disregarding the injustice that would be visited on the appellant by not being heard on the merits of its application. 3.The Appeal challenges the trial Court’s decision dated 11th January 2024 dismissing the Appellant’s Notice of Motion Application dated 23rd October 2023 seeking the setting aside of the ex-parte Judgment obtained by the Respondent in default of the Appellant’s non-appearance in the suit and failure to file a defence. The Notice of Motion Application dated 23rd October 2023 further sought the reinstatement of the Appellant’s Notice of Motion Application dated 10th June 2021 which was dismissed following non-attendance by the Appellant’s then Advocates on record namely, the firm of M/S Wilfred Ngugi & Associates Advocates. 4.The Application was dispensed by way of written submissions. The Appellant filed written submissions dated 18th July of 2025 wherein guidance was placed in the reasoning of the Court in the case of Kenya Industrial Estates Ltd. and Samuel Song & Hema Investments Ltd eKLR; Philip Mutiso Mutalya v. Samuel Dominic Muathe & 2 Others (2022) eKLR; Doa Doa Tented Camps and Lodges Ltd. v. Jubilee Insurance Company of Kenya Ltd (2021) eKLR, to bolster the proposition that the Appellant is entitled to be heard on the merits with regard to its Application dated 10th June 2021. 5.The Respondent's Written Submissions dated 7th October 2025 focused on two (2) issues for determination by this Court:a.Whether the learned Trial Magistrate erred in dismissing the Appellant’s application dated 23rd October 2023?b.Whether the Appellant has demonstrated any excusable cause to warrant the exercise of discretion in its favour? 6.The Respondent relied on the provisions of Order 17 Rule 2 of the Civil Procedure Rules and the decision of the court in the cases of: Ivita v Kyumbu KLR 441; Neeta Gohil vs Fidelity Commercial Bank Limited [2019] eKLR; Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002, to underpin the proposition that the Appellant has failed to establish excusable mistake and the delay by the Appellant demonstrates neglect rather than inadvertence. 7.This being a first Appeal, the Court is conscious of its duty to re-evaluate the entirety of the evidence placed before the trial Court and arrive at its own conclusions, while bearing in mind that it neither saw nor heard the witnesses see, Selle & another v Associated Motor Boat Co. [1968] EA 123. 8.The Respondent argued that a new principal was posted to the Appellant school on 7th October 2021 while the trial Court dismissed the application to set aside the Judgment on 15th June 2022 hence, the new principal was allowed sufficient time to familiarize himself with the subject dispute but failed to follow up on the matter. 9.The Court is alive to the fact that the trial Court’s ex-parte Judgment was rendered on 17th February 2021. The Appellant applied to set aside the same vide its Notice of Motion Application dated 10th June 2021 which was dismissed for non-attendance on 15th June 2022. It is significant to note that a new Principal was posted to the Appellant school on 7th October 2021 some three months following dismissal of the Appellant’s Application. 10.In CMC Holdings Ltd vs James Mumo Nzioka (2004) KLR 173, the Court stated as follows regarding mistakes in the context of applications to set aside ex parte orders:“The discretion that a court of law has, in deciding whether or not to set aside ex parte order such as before us was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error.” 11.In consideration of the foregoing, this Court is satisfied that the non-attendance and failure to file defence by the Appellant who was represented by Counsel before the trial Court is an excusable mistake which should not be visited upon the Appellant. Furthermore, upon weighing the Appellant’s right to be heard on the merits of its claim with the default Judgment held by Respondent, the Court subscribes to the view that the Respondent situation can be remedied by an appropriate award of costs. 12.The following are the Final orders of the Court:a.The trial Court’s Judgment 11th January 2024 is hereby set aside and substituted with an Order reinstating the Appellant’s Notice of Motion Application dated 10th June 2021 for hearing on the merits.b.The matter to be heard by a Magistrate other than the Hon. M.K. Mutegi (PM) who issued the Judgment dated 11th January 2024.c.The Respondent is awarded throw-away costs in the amount of Ksh.35,000.d.Costs to abide in the outcome of the suit. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 11TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Kibunja Nyambura for the AppellantMrs. Maina for RespondentNyabuto – Court Assistant