Kisaf & Taahlil Logistics v Salim (Commercial Case E1342 of 2025) [2026] SCC 131 (KLR)
The bottom line
#A Mombasa Small Claims Court refused to set aside a default judgment because the applicant was properly served on WhatsApp and never filed a draft defence showing a real case.
What this practically means
#Executive summary
#Key legal issues
#Regularity of the default judgment of 5th February 2026
The judgment was regular because the Respondent was properly served with full pleadings via WhatsApp on 16th December 2025 and was aware of the proceedings; the claim that his phone had been stolen was found untruthful since the loss was reported only on 21st December 2025
The court examined the record and found service effected on the Respondent's WhatsApp line on 16th December 2025. The Applicant's assertion that his phone was stolen and he lacked access was contradicted by his own annexure FO3 showing the phone was reported lost/stolen and blacklisted on 21st December 2025, after the date of service.
Whether the default judgment should be set aside under Rule 11(4) of the Small Claims Court Act
Refused: no draft defence was annexed to show triable issues, inadvertence was not demonstrated, and no sufficient grounds were advanced
Relying on Rule 11(4) and the case law cited, the court held that the Applicant failed all three limbs: the default was not inadvertent, no draft defence with triable issues was presented, and no sufficient grounds warranting setting aside were shown. The discretion protects against accident or mistake, not deliberate obstruction.
Admissibility and sufficiency of the supporting affidavit and annexure FO1
Annexure FO1 admitted under Section 32(2) of the Small Claims Court Act as containing in substance evidence of the deponent Fatuma Omar's authority to plead on behalf of the Applicant
The Claimant/Respondent attacked annexure FO1 as lacking in form, but the court, applying Section 32(2) of the Small Claims Court Act, found it contained in substance evidence of the deponent's authority to plead for the Respondent and admitted it as credible.
Legal principles established
#- A regular default judgment (entered after due service) may only be set aside in the court's unfettered discretion after considering reason for default, delay, triable issues, prejudice and the interest of justice
- Under Rule 11(4) of the Small Claims Court Act, default judgment may be set aside where the default was inadvertent, there is a valid defence with probability of success, or there are sufficient grounds
- The discretion to set aside a default judgment exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructs or delays justice
- Annexing a draft defence to demonstrate triable issues is a precondition to setting aside a default judgment
Court orders
#- 1.The Notice of Motion Application dated 20th April 2026 is dismissed with no orders as to costs
- 2.Interim stay of execution issued on 23rd March 2026 is lifted
- 3.The Respondent/Decree Holder is at liberty to proceed and execute
- Jurisdiction invoked
- Rule 11(4) of the Small Claims Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisaf & Taahlil Logistics v Salim (Commercial Case E1342 of 2025) [2026] SCC 131 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/131/eng@2026-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.