Asgher v Wakio (Commercial Case E490 of 2025) [2026] SCC 110 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant was genuinely unaware of the proceedings
The Applicant was aware of the dispute at every stage, as evidenced by certificates of service and email correspondence, and had engaged in settlement negotiations with the Decree Holder
The court examined the certificates of service dated 6th May 2025, 19th May 2025 and 9th June 2025 together with email correspondence on record. It found the Applicant participated in negotiations with the Respondent/Decree Holder aimed at amicable resolution, demonstrating knowledge of the suit, and concluded the application was not filed with clean hands.
Whether the draft defence raises triable issues
The draft defence raises no triable issues, pleading only generalities, a precondition for setting aside default judgment
The court perused the draft defence filed by the Applicant and found it wanting. Citing Githegi v Kondala Limited-Nestle, it held that raising triable issues is a precondition to setting aside default judgment, and the draft defence, being merely general in its pleas, failed to meet that threshold, so no leave to defend could be granted.
Whether the default judgment was regular
The judgment entered on 26th June 2025 was regular, and the Applicant had not satisfied the Rule 11(4) threshold for setting it aside
Since the Applicant was shown to have been aware of the proceedings and its defence raised no triable issues, the court held the judgment was regular. Distinguishing Landmark Freight, where a judgment set aside despite proper service involved triable issues and a high dispute amount, the court found the Applicant here only sought to obstruct or delay the course of justice.
Legal principles established
#- A defendant served with summons but who fails to enter appearance or file defence may move the court under Order 10 rule 11 to set aside a regular default judgment, the court exercising an unfettered discretion guided by reason for default, delay, triable issues, prejudice and the interests of justice
- The discretion to set aside an ex-parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately seeks to obstruct or delay the course of justice
- Under Rule 11(4) of the Small Claims Court Act, default judgment may be set aside only if the default was inadvertent, there is a valid defence with probability of success, or there are sufficient grounds to warrant setting it aside
Court orders
#- 1.The Notice of Motion Application dated 26th February 2026 is dismissed with no orders as to costs
- 2.Stay of execution issued on 26th February 2026 is lifted
- 3.The Respondent/Decree Holder is at liberty to proceed and execute
- Jurisdiction invoked
- Order 10 rule 11 of the Civil Procedure Rules; Rule 11(4) of the Small Claims Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Asgher v Wakio (Commercial Case E490 of 2025) [2026] SCC 110 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/110/eng@2026-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.