Vendome Gold Dmcc v Group Elykia Limited & 2 others

to civil jail for failure to satisfy the decretal sum of USD 5,133,060. The applicant maintains that he has a reasonable defence raising triable issues, and that he has been wrongly dragged into a suit with which he has no connection. 4. The application is opposed through a replying affidavit sworn on 31st January 2025 by Mr. Peter Mumu, learned counsel for the respondent. Counsel confirms that, contrary to the applicant’s averments, the respondent duly served pleadings and summons upon the applicant, pursuant to which his advocates entered appearance but failed to file a statement of defence within the prescribed timelines. 5. The respondent further asserts that a formal request for judgment was filed and served upon the applicant, together with the subsequent application for execution of the decree and the notice to show cause. Beyond the issue of proper service, the respondent contends that the applicant’s draft statement of defence is devoid of merit and does not disclose any reasonable defence to the claim. Analysis and Determination 6. The parties filed written submissions, which I have carefully considered. Notably, the respondent does not oppose the prayer allowing the firm of Michael Were & Associates to come on record for the applicant. That prayer is therefore granted. The sole issue left for consideration is whether the applicant has established sufficient grounds for setting aside the interlocutory judgment entered on 22nd December 2023. 7. Order 10 Rule 11 of the Civil Procedure Rules grants this Court discretion to set aside or vary an interlocutory judgment and any consequential decree or order on such terms as are just. This discretion is wide, but it must be exercised judiciously, not to assist a litigant who deliberately seeks to obstruct or delay justice, but to prevent injustice or hardship caused by inadvertence, excusable mistake, or error. This principle was well captured in Mbogo & Another V Shah, [1967] EA 116, and reaffirmed in Richard Nchapai Leiyangu V IEBC & 2 Others, [2013] eKLR. 8. The first ground relied upon by the applicant is that his former advocates were not properly served with the necessary pleadings. However, the applicant concedes that his advocates did enter appearance on his behalf. It follows, therefore, that he must have been aware of the proceedings and had instructed counsel on the basis of pleadings already served. This undermines his assertion of lack of service. Moreover, the affidavit of service sworn on 2nd November 2023 evidencing service of the pleadings by the respondent, remains unchallenged; its truthfulness was neither denied nor rebutted. 9. The applicant further alleges that he consistently called his former advocate but was not updated on the status of the suit. I find this explanation implausible. No evidence has been provided to demonstrate any genuine follow-up with counsel. Additionally, the applicant does not show what steps, if any, he took independently to safeguard his interests in the matter before the notice to show cause was issued. It is evident that he only acted once he was confronted with the possibility of committal to civil jail, which suggests a reactive rather than active approach to defending the claim. 10. Even where service has been regular, courts retain discretion to set aside an interlocutory judgment if the draft defence raises bona fide triable issues. In Tree Shade Motors Limited V D.T. Dobie & Co. (K) Ltd, [1998] eKLR, the Court of Appeal affirmed that: “even if service was valid, judgment will be set aside if the Defence raises triable issues.” The same principle was echoed in James Kanyiita Nderitu & Another V Marios Philotas Ghikas & Another, [2016] eKLR and Shanzu Investments Ltd V Commissioner of Lands, [1993] eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15503/eng@2025-10-31 2

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11. However, a defence that consists merely of general denials cannot qualify as raising triable issues. In Raghbir Singh Chatte V National Bank of Kenya Limited, [1996] eKLR, Akiwumi JA. cited with approval the statement as set out in Halsbury’s Laws of England which underscores that a party must answer allegations of fact specifically and not evasively, since a general traverse merely puts the opponent to strict proof. 12. The learned judge stated as follows: “ It is not sufficient for a defendant in his defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counterclaim: each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages. When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party he must not do so evasively, but must answer the point of substance. However, it has become common practice to use in a defence a traverse in a general form, this merely puts the opponent to proof.” 13. Similarly, in Magunga General Stores V Pepco Distributor Ltd, EA (1986–89) 334 the Court of Appeal emphasized that a mere denial is insufficient and that the defendant must offer a substantive reason for disputing liability, such as absence of contract, failure of consideration, or proof of payment. The Court restated that: “ First of all, a mere denial is not a sufficient defence in this type of cases. There must be some reason why the Defendant does not owe the money. Either there was no contract, or it was carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.” 14. I have carefully examined the applicant’s draft statement of defence against this background. I must say that the same fails to specifically traverse the respondent’s material allegations and does not disclose any substantive ground of defence. In effect, it is obscure, lacking in detail, and incapable of sustaining a bona fide contest on the merits. 15. Given the nature of the draft defence and the applicant’s conduct, I am not persuaded that this is a proper case for the exercise of the Court’s discretion in his favour. The interlocutory judgment was regularly entered, and the defence proffered is hollow and devoid of triable issues. Allowing it would only serve to delay the expeditious determination of the suit without advancing the ends of justice. Disposition 16. Accordingly, the application dated 19th November 2024 is dismissed with costs to the respondent. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31ST DAY OF OCTOBER 2025. F. MUGAMBI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15503/eng@2025-10-31 3

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