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Small ClaimsPartially AllowedSCCCOM E174 of 2026· [2026] SCC 114 (KLR)

Lumba v Board of Management of Mackinnon Road Girls High School aka Mackinnon Road High School (Commercial Case E174 of 2026) [2026] SCC 114 (KLR)

Small Claims Court
23 April 2026
925 words in judgment
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The bottom line

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Kenya's Small Claims Court confirmed no court permission is needed before default judgment, but set it aside because the missed hearing was honest and a real defence existed.

What this practically means

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Executive summary

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This is a ruling of the Small Claims Court at Mombasa (Resident Magistrate/Adjudicator Theresa N. Mwangeka) on a Notice of Motion dated 25th March 2026 seeking to set aside a default judgment and decree entered on 12th March 2026, on the ground that the default judgment was entered without leave of court. The Applicant contended that no leave had been obtained and that its advocates were engaged in another matter on the hearing date. The Respondent produced a certificate of service dated 10th March 2026 showing the Applicant was notified of the claim. The court noted that the Applicant's advocate's diary extract for 12th March 2026 did not list this suit, lending credence to the assertion that no advocate had been engaged at the time. The court rejected the submission that leave must precede default judgment, holding that Rule 11(2) of the Small Claims Court Act Rules does not require it, meaning the judgment was regular. Nonetheless, applying Rule 11(4) of the Small Claims Court Act and the guidance in James Kanyiita Nderitu, Landmark Freight Services and Githegi v Kondala, the court found the default inadvertent, the application brought promptly 13 days after judgment, and the draft defence raising triable issues - the amount due allegedly being Kshs. 340,650/= rather than Kshs. 549,550/= owing to double billing on the same LPO. Finding no prejudice to the Respondent, the court allowed the application, set aside the judgment and consequential orders, directed the Applicant to file its response and serve the Claimant by 30th April 2026, and fixed mention on the same date for confirmation of compliance. No costs order was made.

Key legal issues

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01

Whether leave is required before default judgment is entered in Small Claims Court proceedings

Holding

Leave is not required; Rule 11(2) of the Small Claims Court Act Rules does not mandate it

Reasoning

The Applicant argued default judgment was irregular because leave was not obtained. The court rejected this, holding that Rule 11(2) of the Small Claims Court Act Rules contains no such requirement, so the default judgment was regular in form. The proper route was therefore an application under Rule 11(4) to set aside rather than an attack on regularity.

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02

Whether the Applicant's default was inadvertent and excusable

Holding

The court found the Applicant had not engaged an advocate at the time of hearing, noting the diary extract did not list this suit, and that the application was filed swiftly 13 days after judgment

Reasoning

The Respondent served the Applicant with notice as evidenced by a certificate of service dated 10th March 2026. The Applicant's advocate diary extract for 12th March 2026 did not list this suit, supporting the assertion that no advocate had been engaged then. Combined with the prompt application 13 days after judgment, the default was treated as inadvertent and excusable.

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03

Whether the draft defence raises triable issues warranting setting aside

Holding

Yes - the draft defence alleges the amount due is Kshs. 340,650/= and not Kshs. 549,550/= due to double billing on the same LPO

Reasoning

The court perused the draft defence and witness statement and found a valid defence with a probability of success: a dispute over the quantum claimed, alleging double billing for the same LPO. It also held no prejudice would be occasioned to the Respondent if the matter were heard on its merits, satisfying Rule 11(4) and the interest-of-justice test.

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Legal principles established

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  • Leave of court is not required before default judgment is entered in the Small Claims Court
  • Default judgment may be set aside where the default was inadvertent and there is a valid defence with a probability of success
  • The discretion to set aside ex-parte judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay

Court orders

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  1. 1.The Notice of Motion Application dated 25th March 2026 is allowed
  2. 2.Judgment entered on 12th March 2026 is set aside together with all consequential orders
  3. 3.The Applicant/Respondent to file their response to the claim together with accompanying documents and serve the Claimant by 30th April 2026, in default the Claimant may apply for leave to enter judgment
  4. 4.The suit to be mentioned on 30th April 2026 for confirmation of compliance with the orders
Jurisdiction invoked
Order 10 rule 11 of the Civil Procedure Rules and Rule 11 of the Small Claims Court Act Rules (preconditions for setting aside default judgment)

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, "Lumba v Board of Management of Mackinnon Road Girls High School aka Mackinnon Road High School (Commercial Case E174 of 2026) [2026] SCC 114 (KLR)", Case Analysis (2026). SCCCOM E174 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/114/eng@2026-04-23

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