Jkm v Lns

6. ii. That leave be and is hereby granted to defend the suit and the Respondent’s Defence and Counter-claim annexed to be deemed as duly filed and served upon payment of the requisite court fees. iii. That costs of the application shall abide the main cause. The Appellant is aggrieved with the said Ruling and has appealed to this court on the following grounds:i. The learned Magistrate erred in law in failing to exercise her discretion judiciously in an application to set aside judgment in default of defence. ii. The learned Magistrate erred in fact and in law in failing to give reasons for her decision. iii. The learned Magistrate misdirected herself in failing to make a substantive finding on whether the reason that the Respondent gave for not filing a defence in time was plausible or not. iv. The learned Magistrate misdirected herself in failing to make a substantive finding as to whether the time it took the Respondent to file an application to set aside after learning of the default judgment was inordinate or not. v. The learned Magistrate misdirected herself in finding that the draft defence raised triable issues and failing to give concrete reasons for so finding. vi. The learned Magistrate erred in failing to give due consideration to the Appellant’s submissions. vii. The learned Magistrate erred in applying the wrong principles of law thereby arriving at a wrong decision. 7. The parties filed written submissions as follows; The Appellant, JKM, submitted that he seeks to overturn the ruling of the trial court which set aside a default judgment entered in his favour. 8. He argues that the trial court misdirected itself in exercising its discretion to grant the Respondent, LNS, leave to defend the case. 9. The background is that the Appellant obtained a final, liquidated default judgment for KShs 3.7 million in December 2023 after the Respondent failed to file a defence. 10. The Respondent was served with the judgment and a notice to show cause in early 2024 but took no action until the morning of the hearing for the show cause notice in June 2024, when she filed her application to set aside the judgment. 11. The Appellant contends that the trial court failed to judicially exercise its discretion because it ignored the Respondent's conduct. 12. He argues that the Respondent's delay from February to June 2024 in filing her application was inordinate and unexplained, indicating a deliberate attempt to obstruct justice, which should have disqualified her from receiving the court's discretionary relief. 13. In the alternative, the Appellant challenges the trial court's finding that the Respondent's proposed defence raised triable issues. 14. He submits that the blanket denial in paragraph 3 of the defence is not a bona fide triable issue as it does not address the substantive allegations in the Plaint. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19195/eng@2025-11-27 2

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15. Furthermore, he argues that paragraphs 9 and 10, which form the basis for a counterclaim, constitute a separate and distinct cause of action and cannot legitimately be considered as "triable issues" answering his claim. 16. Consequently, the Appellant urges the High Court to allow the appeal, reinstate the default judgment, and award him the costs of both the appeal and the original application in the lower court. 17. The Respondent submitted that the appeal is without merit and should be dismissed. 18. The central issue in the Respondent's position is that the trial magistrate properly exercised her judicial discretion in the interest of justice. 19. The Respondent explains that the failure to file a defence in time was due to an inadvertent oversight by her counsel, who, after filing a memorandum of appearance, mistakenly placed the file among those with a 2024 hearing date. 20. It is further contended that the Respondent has a meritorious defence and a counterclaim which raise triable issues, as detailed in her supporting affidavit. 21. The Appellant did not challenge these material averments. The court's primary concern is to do justice between the parties by allowing a hearing on the merits, unless it would prejudice the other side, and that a default judgment should be set aside where a reasonable defence is shown, even if the delay was negligent. 22. The Respondent concludes that no prejudice was suffered by the Appellant, who will still have the opportunity to prosecute his case, and urges the court to dismiss the appeal. 23. This is an interlocutory appeal against a Ruling which allowed the Respondent to defend the suit and to file a Counter claim. The issues for determination in this appeal are as follows:i. Whether the trial court was right in setting aside the exparte judgment. ii. Whether the Draft Defence raised triable issues. iii. Who should pay the costs of the application and the appeal? 24. This appeal challenges the exercise of discretion by the trial court in setting aside a default judgment. 25. The principles governing such an exercise are well-settled in Kenyan jurisprudence. 26. The court’s discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship as long as doing so does not prejudice the plaintiff. 27. It is a discretionary power that must be exercised judicially, not capriciously. 28. The overarching aim is to do justice to both parties, with the court leaning towards allowing a defendant to be heard unless this would cause an injustice to the plaintiff that cannot be compensated by costs. 29. The discretion is wide and its primary purpose is to avoid injustice or hardship resulting from an accident, inadvertence, or excusable mistake or error. 30. The first issue is whether the trial court was right in setting aside the ex parte judgment. 31. The Appellant contends that the Respondent’s delay from February 2024, when she learned of the judgment, until June 2024, when she filed her application, was inordinate and unexplained. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19195/eng@2025-11-27 3

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32. However, the Respondent attributed this delay to an inadvertent oversight by her counsel, who mistakenly placed the file among those with a 2024 hearing date. 33. While delay is a significant factor, the courts have consistently held that where a reasonable defence is disclosed, the court should not penalize a litigant for the mistakes of their advocate. 34. A blunder by an advocate should not be visited upon an innocent litigant. The explanation, while not exemplary, is not so egregious as to warrant shutting out the Respondent from presenting her case, especially in the absence of any demonstrated prejudice to the Appellant that cannot be remedied by an award of costs. 35. The trial court was thus entitled to find the explanation sufficient in the context of securing a hearing on the merits. 36. The second issue is whether the Draft Defence raised triable issues. 37. A triable issue is not one that must succeed, but one that raises a bona fide issue that ought to be tried. 38. The Appellant argues that the defence is a mere denial and that the counterclaim is a separate cause of action. 39. A perusal of the Draft Defence reveals more than a blanket denial. 40. It specifically denies receiving Kshs. 3.7 million from the Appellant for the purpose of purchasing land. 41. More significantly, it introduces a counterclaim alleging that the Appellant forcibly took title documents for a property known as L.R. No. [Particulars Withheld] and has refused to return them, causing the Respondent loss and damage. 42. This assertion, if proved, constitutes a distinct and substantive defence to the Appellant’s claim, suggesting a potential alternative narrative regarding the financial dealings between the parties. 43. A draft defence raises a triable issue where it discloses facts which, if proved, would constitute a defence to the plaintiff’s claim. 44. The proposed defence and counterclaim meet this threshold. The trial court was therefore correct in its finding that triable issues were raised, even if its reasoning could have been more elaborate. 45. Concerning the final issue of costs, the general principle is that costs follow the event. 46. Since the appeal fails, the Appellant shall bear the costs of this appeal. 47. Regarding the costs of the application in the lower court, the trial magistrate ordered that they “shall abide the main cause.” 48. This was a proper exercise of discretion, as the ultimate liability for costs should be determined after the merits of the entire case have been adjudicated. 49. In conclusion, having found that the trial magistrate exercised her discretion judicially and in accordance with the established principles that favour the resolution of disputes on their merits, this court finds no reason to disturb the Ruling delivered on 30th October 2024. 50. The appeal is therefore dismissed. The Respondent shall have the costs of this appeal. 51. The orders of the trial court regarding the filing of the Defence and Counter-claim and the costs of the application are hereby upheld. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19195/eng@2025-11-27 4

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52. ORders To Issue Accordingly. DATED, SIGNED AND DELIVERED THIS 27TH DAY OF NOVEMBER, 2025 VIRTUALLY VIA MICROSOFT TEAMS AT VOI. ASENATH ONGERI JUDGE In the presence of:Court Assistant: Millicent/Mabishi ……………………………………………….for Appellant ………………………………………………..for Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19195/eng@2025-11-27 5

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