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MagistratePartially AllowedNot stated in judgment· [2025] KEMC 46 (KLR)

Musyoka v Mutunga (Civil Suit E154 of 2024) [2025] KEMC 46 (KLR)

Chief Magistrate's Court
18 February 2025
DMDAVID MBURU
1,366 words in judgment
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The bottom line

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A Kenyan court set aside a default judgment on condition the defendant quickly files a defence and pays the plaintiff Kshs. 30,000.

What this practically means

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Executive summary

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The defendant, Jairus Mulei Musyoka, moved the court by Notice of Motion dated 9th September 2024 seeking variation, vacation or setting aside of an exparte/default judgment entered against him on 3rd September 2024, together with enlargement of time to file a defence, witness statements and list of documents, and admission of the attached draft defence. The plaintiff, Jedidah Margaret Mutunga, opposed the application through a replying affidavit sworn on 16th September 2024, and the application was canvassed by written submissions. Framing the sole issue as whether the application met the threshold for setting aside a default judgment, the court held that setting aside an exparte judgment is discretionary under Order 10 Rule 11 of the Civil Procedure Rules 2010. It adopted the principles in Pithon Waweru Maina v Thuka Mugiria as restated in Toshike Construction, and the factors in James Kanyita Nderitu v Marios Philotas Ghika: delay, triable issues, prejudice and the interest of justice. Characterising the judgment as a regular default judgment, the court accepted mistake of counsel as a reasonable explanation, found the draft defence raised triable issues rather than being a mere denial, and invoked Article 50 of the Constitution on the right to a fair trial. The court allowed the application, set aside the default judgment and consequential orders on conditions: the defendant to file and serve his defence within 14 days and to pay throw away costs of Kshs. 30,000/= to the plaintiff within 14 days, failing which the setting-aside order would lapse without further reference to the court.

Key legal issues

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01

Threshold for setting aside a regular default judgment

Holding

The court has a wide, free discretion exercisable to do justice between the parties; in a regular judgment the court will usually require a defence raising triable issues

Reasoning

Relying on Order 10 Rule 11 CPR 2010 and the Pithon Waweru Maina principles as restated in Toshike Construction, the court held the discretion is unlimited save that any variation must be on just terms, aimed at avoiding injustice from accident, inadvertence or excusable mistake, and not designed to assist deliberate obstruction. Mistake of counsel was accepted as a sufficient explanation.

p. 2
02

Whether the draft defence raises triable issues

Holding

The proposed defence was not a mere denial and raised matters requiring trial

Reasoning

Applying the factors in James Kanyita Nderitu v Marios Philotas Ghika - length of delay, triable issues, prejudice and the interest of justice - the court found the defence raised issues warranting full trial. The right to a fair hearing under Article 50 of the Constitution is fundamental, and no party should be shut out for counsel's blunder where reasonable explanation is given.

p. 3

Legal principles established

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  • Setting aside a regular default judgment is discretionary and the governing factors are delay, triable issues, prejudice and the interest of justice
  • A defence on merits need not succeed; it suffices that it raises a triable issue
  • A party should not be penalised for a mistake of counsel where sufficient reasonable explanation is given

Court orders

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  1. 1.Default judgment entered on 3rd September 2024 and all consequential orders set aside
  2. 2.Defendant to file and serve statement of defence within 14 days
  3. 3.Defendant to pay throw away costs of Kshs. 30,000/= to the plaintiff within 14 days
  4. 4.In default of compliance the order setting aside the default judgment shall lapse without further reference to the court

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 10 Rule 11
  • Constitution of Kenya 2010Article 50

Cases cited (8)

  • Pithon Waweru Maina v Thuka Mugiria
    [1998] eKLR
  • Toshike Construction Company Limited v Harambee Cooperative Savings Limited
    [2019] eKLR
  • James Kanyita Nderitu v Marios Philotas Ghika
    [2016] eKLR
  • Esther Wamaitha Njihia & two others v Safaricom Ltd
    [2011]
  • Patel v East Africa Cargo Handling Services
    [1974]
  • Richard Nchapai Leiyangu v IEBC & 2 others
    [2016]
  • Republic v Speaker Nairobi City County Assembly
    [2017] eKLR
  • Kenya Pipeline Company Limited v Mafuta Products Limited
    [2014] eKLR
On appeal from
null
null
Jurisdiction invoked
Order 10 Rule 11 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musyoka v Mutunga (Civil Suit E154 of 2024) [2025] KEMC 46 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/46/eng@2025-02-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.