East Africa Cables Limited v Rift Valley Cable Distributors Limited (Commercial Case 147 of 2016) [2025] KEHC 13344 (KLR) (Commercial and Tax) (25 September 2025) (Ruling) Neutral citation: [2025] KEHC 13344 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI COMMERCIAL COURTS) COMMERCIAL AND TAX COMMERCIAL CASE 147 OF 2016 AA VISRAM, J SEPTEMBER 25, 2025 BETWEEN EAST AFRICA CABLES LIMITED ............................................. DECREE HOLDER AND RIFT VALLEY CABLE DISTRIBUTORS LIMITED ........... JUDGMENT DEBTOR RULING Introduction 1. I have considered the Notice of Motion dated 20th July, 2023, together with the supporting affidavit sworn by Edwin Gichuki Kibe on even date, and the replying affidavit sworn by Joseph Kinyua, on behalf of the Decree-Holder. I have also considered the submissions of Counsel for both parties. The Application seeks orders to set aside the ex parte judgment entered on 15th June, 2016, to stay execution, and to grant leave to the Defendant to file a defence out of time. Issues for Determination 2. The issue that falls for determination is whether the Applicant has demonstrated sufficient cause to warrant the setting aside of the judgment of this Court entered on 15th June, 2016, and the reopening of this matter after the lapse of more than seven years. 3. The applicable law is to be found in Order 10, rule 11 of the Civil Procedure Rules which provides that where judgment has been entered under that Order, the Court may set aside or vary such judgment and any consequential decree or order upon such terms as are just. The discretion given to the Court under this rule is a wide one, but it is to be exercised judicially and on the basis of established principles. 4. The guiding principles were set out in Mbogo & Another v Shah (1968) 1 EA 93 where it was stated that the discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13344/eng@2025-09-25 1
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hardship resulting from accident, inadvertence or excusable mistake or error, but not to assist a person who has deliberately sought to obstruct or delay the course of justice. 5. The same approach was applied in Rayat Trading Co. Ltd v Bank of Baroda & Tetezi House Ltd [2018] eKLR where the court emphasized that the principal consideration is whether the Defendant has a real prospect of successfully defending the claim or there is another good reason for setting aside the judgment. The English Court of Appeal in Thorn PLC v Macdonald [1999] CPLR 660 highlighted that the length of delay, the explanation for it, the existence of a defence with real prospects of success, and the prejudice to the Plaintiff are all relevant factors to be taken into account. Analysis and determination 6. The Applicant contends that it was never properly served with summons to enter appearance and relies on the claim that service was effected on a former sales agent, not an authorised officer. 7. On the other hand, the Decree-Holder maintains that service was regular, duly effected upon a manager who acknowledged receipt, and that the Applicant has been aware of the proceedings for several years. It points to the Applicant’s participation in execution proceedings and the inordinate delay of seven years before filing the present application. 8. Based on the documents before the Court, the Decree-Holder demonstrated that the Summons to Enter Appearance were issued on 6th May, 2016, and were served on 13th May, 2016, upon one Michael Kirui, who it contends was at the time a manager at the Defendant’s registered office in Eldoret, and who acknowledged receipt by signing the summons. 9. Following the Defendant’s failure to enter appearance, judgment was entered on 15th June, 2016. Warrants of execution were subsequently issued and attachment was undertaken at the Defendant’s offices. 10. The record also shows that the Defendant thereafter participated in the execution proceedings through Counsel, sought adjournments and filed documents as late as 2019. It is therefore clear that the Defendant was at all times aware of the existence of the judgment and the ensuing proceedings. 11. Despite this knowledge, the Defendant waited for nearly seven years before filing the present Application. No credible or satisfactory explanation has been given for this inordinate delay. The allegation that service was irregular because it was effected upon a person who was not a principal officer of the company is not borne out by the record. 12. In my view, the period of delay is prolonged and inexcusable and likely to occasion undue prejudice. Issuing a stay of execution at this point may also be academic. A court ought not make orders in vain. Finally, to set aside the judgment now, seven years later, would undermine the principle of finality in litigation and reward indolence. Conclusion 13. In light of the foregoing, I find that the Applicant has not satisfied the Court that this is a proper case in which to exercise discretion in its favour. The delay of seven years has not been explained, the allegation of improper service has not been satisfactorily established by the record. 14. The orders of this court are :a. The judgment entered on 15th June, 2016, remains valid and enforceable. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13344/eng@2025-09-25 2
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b. The Notice of Motion dated 20th July, 2023, is therefore dismissed with costs to the DecreeHolder. DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 25TH DAY OF SEPTEMBER, 2025 ALEEM VISRAM, FCIArb JUDGE In the presence of; Court Assistant: Lisper ………………..…………….....................................................for Decree-Holder ………………………………………..................................for Judgment-Debtor https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13344/eng@2025-09-25 3
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