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MagistrateDismissedNot stated in judgment (Motion on Notice dated 02/04/2025)· [2026] KEMC 53 (KLR)

Thuku (Suing on Behalf and t/a as Hillset Enterprises) v Tgram Global Consultancy Limited & another (Civil Case E031 of 2025) [2026] KEMC 53 (KLR)

Magistrates' Court (Senior Principal Magistrate), Nakuru
26 February 2026
ANALOYCE PETER NDEGE
2,656 words in judgment
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The bottom line

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A Nakuru court refused to undo a default judgment because the defendants, though served and represented, simply failed to file a defence in time.

What this practically means

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Executive summary

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This ruling by the Senior Principal Magistrate at Nakuru determined a Motion on Notice dated 02/04/2025 by the defendants, Tirus Karanja Ndegwa and TGRAM Global Consultancy LTD, seeking to set aside a final default judgment entered on 04/03/2025 on a liquidated claim, and leave to file a defence out of time. The applicants argued they were unaware judgment would be entered at a mention they believed was for directions, that entry of judgment was premature and procedurally prejudicial, and that they had a viable defence. The plaintiff opposed, asserting the defendants were served on 22/01/2025, entered appearance on 04/02/2025, had until 18/02/2025 to file a defence under Order 10 Rule 4(1), and failed to do so, so judgment was regular. The court held the discretion to set aside judgment must be exercised on fixed principles, with the burden on the applicant. Finding the applicants duly served and represented at the mention, the court held they could not claim denial of a fair hearing; their failure to defend was mere inaction, for which blaming counsel is no answer. Attacks on the regularity of the judgment were matters for appeal. Citing Union Insurance v Dhanji, Omwoyo, Mwangi v Mwangi, Maneno Mengi and Shah v Mbogo, the court dismissed the application with no order as to costs, leaving the default judgment undisturbed.

Key legal issues

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01

Service and entry of appearance defeat a claim of denial of fair hearing

Holding

Applicants were served, entered appearance and were represented at the mention; final judgment under Order 10 rules 5 and 10 was regular where no defence was filed within 14 days

Reasoning

The court found, on oath-depositions, that the applicants were served with summons and plaint, entered appearance through counsel on 04/02/2025, and had 14 days to file a defence under Order 7 Rule 1. Order 10 rules 5 and 10 permit final judgment on a liquidated claim where no defence is filed. Being represented at the mention, they cannot claim they were denied a hearing; grounds of prematurity or irregularity belong to an appellate court.

p. 4
02

Inaction and lack of diligence are not grounds to set aside a default judgment

Holding

The applicants' failure to defend was mere inaction; simple inaction by counsel coupled with a client's careless attitude does not warrant exercise of the court's discretion

Reasoning

Relying on Mwangi v Mwangi and Maneno Mengi, the court held that a party seeking discretion must place material before the court, that blaming counsel is no answer, and that lack of diligence is no ground for circumventing the rules. Counsel present on 04/03/2025 could have sought time to file a defence but did nothing. Shah v Mbogo confirms the discretion is not designed to assist a person who has deliberately obstructed or delayed the cause of justice.

p. 5

Legal principles established

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  • The power to set aside judgment is a judicial discretion exercised on fixed principles, with the burden of disclosing material falling on the applicant
  • Once a party is given a reasonable opportunity to be heard and does not utilise it, the party can only be heard on why they did not utilise the opportunity

Court orders

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  1. 1.The Motion on Notice dated 02/04/2025 is dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 7, Rule 1
  • Civil Procedure RulesOrder 10, Rule 4(1)
  • Civil Procedure RulesOrder 10, Rules 5 and 10

Cases cited (6)

  • Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji
    Civil Application No. Nai. 179 of 1998
  • Issa Leshan Keres and 4 Others vs. Kipoki Oreu Tasur and 10 Others
    Civil Appeal No. 5 of 2004
  • Omwoyo vs. African Highlands & Produce Co Ltd
    [2002] 1 KLR 698
  • Mwangi vs. Mwangi
    [1999] 2 EA 234
  • Maneno Mengi Ltd and Others vs. Nyamachumber and Another
    [2004] 1 EA 116
  • Shah vs. Mbogo
    (1967) EA 166
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (inherent jurisdiction and overriding objective)

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, "Thuku (Suing on Behalf and t/a as Hillset Enterprises) v Tgram Global Consultancy Limited & another (Civil Case E031 of 2025) [2026] KEMC 53 (KLR)", Case Analysis (2026). Not stated in judgment (Motion on Notice dated 02/04/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/53/eng@2026-02-26

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