Waswa v Automega Ltd & another (Civil Case E019 of 2025) [2025] KEMC 390 (KLR)
The bottom line
#A Bungoma court set aside an interlocutory judgment, letting a late defendant defend the case, but ordered quick payment of costs.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to file a defence out of time should be granted despite an unexplained delay of about two months after interlocutory judgment
The application was allowed: although the delay was unexplained and inordinate, the proposed defence raised triable issues and the right to be heard prevailed, with prejudice cured by throw-away costs.
The court applied the Harun Osoro Nyamboki principles: reasonable explanation, extenuating circumstances, and whether the delay is inordinate. The applicant's explanation (non-service on the insurer) failed because the insurer was served, and the two-month delay was unexplained and therefore inordinate. However, the proposed defence raised triable issues, the right to be heard is constitutionally protected, and prejudice to the respondent could be cured by throw-away costs. The court also set aside the interlocutory judgment suo motu under Article 159(2)(d) and the overriding objective since no such prayer had been made.
Whether the interlocutory judgment was lawfully endorsed
The interlocutory judgment was lawfully endorsed and regular, having been endorsed nearly thirty days after service of summons.
The applicant contended the request for judgment was premature as the fifteen days for entering appearance had not lapsed. The court accepted the request was filed early but noted judgment was endorsed on 25th February 2025, about thirty days after service on 24th January 2025, rendering the endorsement lawful. The applicant's claim that the insurer was never served was contradicted by the certificate of postage evidencing service of the statutory notice and notice of institution of suit, and by the affiant's own admission that summons were served on 24th January 2025.
Legal principles established
#- Failure to serve a statutory notice, summons, plaint or pre-trial documents on an insured's insurer does not excuse the insured from filing a defence within the prescribed time; non-compliance only becomes significant to an insurer during execution or in a declaratory suit.
- What constitutes unreasonable delay depends on the circumstances of each case, and in the absence of a plausible explanation, delay is not excusable.
- The right to be heard should only be denied in the clearest of cases; where a proposed defence raises triable issues, a party should ordinarily have their day in court.
- Courts may make appropriate orders as they deem fit in the course of a trial, even where not expressly prayed for, guided by Article 159(2)(d) and the overriding objective.
Court orders
#- 1.The interlocutory judgment entered against the 2nd Defendant/Applicant on 25th February 2025 is set aside
- 2.The 2nd Defendant/Applicant is granted leave to file its defence out of time and the Statement of Defence attached to the application is deemed duly filed upon payment of the requisite court fees
- 3.The parties to comply with Order 11 within 14 days from the date of the ruling
- 4.The 2nd Defendant/Applicant to pay the Plaintiff/Respondent throw-away costs of Kshs. 20,000/= and the costs of Kshs. 5,000/= awarded on 06th May 2025, within 14 days, failing which the suit shall proceed as undefended
- Jurisdiction invoked
- Article 50 and 159(2) of the Constitution of Kenya; sections 1A, 1B, 3A and 95 of the Civil Procedure Act; Order 36 rule 7, Order 50 rule 6 and Order 51 rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waswa v Automega Ltd & another (Civil Case E019 of 2025) [2025] KEMC 390 (KLR)", Case Analysis (2025). Bungoma CMC CC. NO. E019 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/390/eng@2025-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.