Chanzera v Trident Insurance Co.Ltd (Civil Case E003 of 2025) [2025] KEMC 190 (KLR)
The bottom line
#A Lamu court refused to set aside a default judgment because the defendant ignored service, delayed acting, and never filed a draft defence.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the conditions for setting aside an ex parte judgment
No. Only the absence of inordinate delay was satisfied; the draft defence raising triable issues was never filed, service was duly effected and acknowledged, and the applicant acted with unclean hands.
The court outlined the tripartite conditions plus the overriding objective, citing Rahman vs Rahman and James Kanyiita Nderitu. The applicant failed to attach a draft defence, so triable issues could not be assessed. Affidavits of service showed acknowledged service on 4/4/2025 and email service on 10/5/2025, none of which was challenged. The applicant's delay of over a month in instructing counsel and failure to appear despite notice evidenced indolence and bad faith.
Whether leave to defend the claim should be granted
Refused, being consequential to the failure to set aside the judgment.
Leave to defend flows from a successful setting-aside application. Having found the conditions unsatisfied and the application a hoodwink, the court declined leave to file a defence and counterclaim.
Who bears costs of the application
The applicant, as the application was dismissed with costs.
The court found the application unmerited and destined for dismissal, awarding costs to the Plaintiff/Respondent who successfully defended the judgment procedurally obtained.
Legal principles established
#- Setting aside an ex parte judgment is discretionary, exercised to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a party who deliberately obstructed or delayed justice.
- An applicant to set aside an ex parte judgment must demonstrate a defence raising triable issues, absence of inordinate delay, no prejudice to the claimant, and the overriding objective.
- Equity aids the vigilant, not the indolent; a party who ignores proper service cannot obtain relief from default.
Court orders
#- 1.The application dated 22/5/2025 is dismissed with costs to the Plaintiff/Respondent
- 2.The ex parte judgment of 16/5/2025 remains in force; no leave to file a defence or counterclaim granted
- Jurisdiction invoked
- Inherent discretion of the court under Order 10 rule 11 of the Civil Procedure Rules to set aside an ex parte/default judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chanzera v Trident Insurance Co.Ltd (Civil Case E003 of 2025) [2025] KEMC 190 (KLR)", Case Analysis (2025). Not stated in judgment (related primary suit: LAMU PMC CC No. E009 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/190/eng@2025-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.