Musyoka v Mwanthi (Claim E236 of 2022) [2026] SCC 52 (KLR)
The bottom line
#Kenya's High Court upheld setting aside a default judgment entered without proof of service, but replaced the costs award with thrown-away costs favouring the diligent claimant.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the High Court on appeal from the Small Claims Court
The appeal lies only on matters of law; factual findings such as absence of a certificate of service are not open to challenge.
Section 38(1) of the Small Claims Court Act confines the appeal to questions of law. The trial court's finding that no certificate of service was filed for the statement of claim is a factual determination and cannot be re-evaluated unless perverse or unsupported by evidence. That finding stands.
Setting aside of the exparte judgment
The judgment was irregular, having been entered without proof of service of the statement of claim, and was rightly set aside as of right.
The trial court found no certificate of service for the statement of claim; the attachments only proved service of mention notices. An irregular judgment must be set aside ex debito justitiae, not as a matter of discretion, so the magistrate's decision could not be disturbed.
Costs and thrown-away costs
The trial court misdirected itself in awarding costs to the respondent, the defaulting party; the appellant should instead receive thrown-away costs.
Although the respondent succeeded in setting aside the judgment, the setting aside arose from his own default. The appellant had incurred costs in filing, prosecuting and executing the claim, and obtained a valid though irregularly entered judgment. Costs should compensate the appellant for costs rendered abortive.
Fair hearing directions on late filing of the defence
To avoid prejudice, the appellant must be allowed to file a rejoinder and recall or call witnesses, consistent with Order 18 Rule 10 of the Civil Procedure Rules.
The appellant had closed his case when the respondent was permitted to file his defence. To ensure a fair hearing and avoid prejudice, the court exercised the power to permit a rejoinder and recall of witnesses at any stage of the suit.
Legal principles established
#- Where judgment is entered without proper service, it is an irregular judgment and must be set aside ex debito justitiae as a matter of right.
- Appeals from the Small Claims Court to the High Court lie only on matters of law and the court cannot re-evaluate factual findings unless the decision is perverse or based on no evidence.
- An applicant who successfully sets aside an exparte judgment may be condemned in costs or ordered to pay thrown-away costs, particularly where the setting aside results from his own default.
Court orders
#- 1.The appeal against the setting aside of the exparte judgment is dismissed.
- 2.The order of the trial court awarding costs of Kshs. 15,000 to the respondent is set aside.
- 3.The appellant is awarded thrown-away costs of Kshs. 15,000 to be paid by the respondent before the matter is set down for hearing.
- 4.The respondent shall file and serve his statement and all pre-trial documents within thirty (30) days of this ruling.
- 5.The appellant shall have thirty (30) days from the date of service to file any rejoinder and may recall any witness or call another witness to respond to the respondent's case.
- 6.The matter is remitted to the Small Claims Court at Machakos for hearing on priority basis.
- 7.Each party shall bear their own costs of this appeal.
- On appeal from
- Small Claims Court at Machakos
- SCCCOM No. E236 OF 2022
- Jurisdiction invoked
- Section 38(1) of the Small Claims Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyoka v Mwanthi (Claim E236 of 2022) [2026] SCC 52 (KLR)", Case Analysis (2026). Appeal from SCCCOM No. E236 OF 2022 (Small Claims Court at Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/52/eng@2026-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.