Margaret Odhiambo Nelima v Ministry of Industry, Trade and Co-operatives & 3 others [2020] KEELC 1639 (KLR)

The court noted that mention notices were served at the Nairobi office and a taxation notice at the Eldoret office, yet no representation appeared. It found no explanation why documents served in a 'wrong' office were not forwarded, and adopted Mukunya J's finding that the defendants were duly served. Submissions served on the Kakamega office also drew no response, evidencing lack of seriousness.

Counsel's illness in 2019 did not explain the delay, and the 1st defendant took a year after being informed of the judgment to instruct the filing of the application. The supporting affidavit itself showed awareness of the Busia judicial review proceedings seeking mandamus to compel payment, demonstrating an intent to delay satisfaction of the decree rather than cure an inadvertent mistake.

Following Patel v East Africa Cargo Handling Services and James Kanyitta Nderitu, a defendant seeking to set aside a regular default judgment must show a defence raising triable issues. The defendants merely sought leave to file a defence out of time without annexing any draft, so no triable issue was demonstrated and the discretion could not be exercised in their favour.

Order 9 Rule 7 concerns a party who has sued or defended in person appointing an advocate, and Order 9 Rule 9 concerns change of advocate after judgment. Neither applies where the case proceeded ex-parte against defendants who never appeared, so it was perfectly in order for Mr Tarus to come on record.

Although the motion cited Sections 1A, 1B and 3A of the Civil Procedure Act and Article 50 of the Constitution, the correct provision for setting aside a default judgment is Order 10 Rule 11. The court held this lapse was not fatal and proceeded to determine the application on its merits.