Daniel Amwayi Joab v Richard Ombasa Ondieki & 1 other

3. The appeal principally challenges the Small Claims Court’s decision to set aside a default judgment entered in favour of the Appellant and its refusal to review that decision. The impugned ruling dismissed the Appellant’s application dated 21st August 2025 for review and striking out of affidavits alleged to have been defective and perjured. The Appeal 4. 5. The Appellant listed the following main grounds of appeal in the Memorandum of Appeal: a. That the trial court erred in ignoring the affidavit of service dated 7th October 2019 confirming valid service. b. That the trial court failed to issue rulings on applications dated 7th May 2025 and 27th March 2025. c. That the trial court improperly accepted fraudulent affidavits sworn by persons not before a valid commissioner for oaths. d. That there existed an error apparent on the face of the record, thus warranting review under Order 45 Rule 1. The Respondent, however, opposed the appeal, contending that: a. The default judgment was irregular and could be set aside ex debito justitiae; b. The Appellant had already pursued review and could not simultaneously pursue an appeal under Order 45 Rule 1 of the Civil Procedure Rules; c. The trial court correctly exercised its discretion to allow both parties to be heard on merit; and d. The appeal was incompetent and frivolous, merely seeking to retain possession of the Respondent’s motor vehicle. Issues for Determination 6. The appeal was canvassed by way of written submissions which I have considered. From the pleadings and submissions, I find that the following issues arise for determination: a. Whether the 1st Respondent’s applications and affidavits were proper before the Small Claims Court. b. Whether the default judgment was regular or irregular. c. Whether the setting aside Application was overtaken by events d. Whether the application for review was merited under Order 45 Rule 1. e. Whether the trial court misdirected itself in exercising discretion to set aside the ex parte judgment. f. Whether the present appeal is competent in light of the prior review. g. Whether costs should follow the event. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19407/eng@2025-11-20 2

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Analysis and Determination Propriety of Afidavits and Applications Before the Small Claims Court 7. The Small Claims Court is governed by the Small Claims Court Act, 2016 (the Act). Section 3 of the Act provides that the Court shall be guided by Article 159(2) of the Constitution which emphasizes on the administration of justice without undue regard to procedural technicalities. 8. Section 32 of the Act expressly excludes the strict application of the rules of evidence. The section empowers the Court to admit any material, whether sworn or unsworn, that it considers credible and trustworthy. 9. In light of the above provisions of the Act, I find that the Appellant’s reliance on the Oaths and Statutory Declarations Act and the Evidence Act was misplaced. I therefore find that the trial Court was well within its powers to accept the 1st Respondent’s affidavit and supporting documents as evidence. Nature of the Default Judgment 10. The 1st Respondent’s case was that he was not served with summons to enter appearance or hearing notices in the small claims matter. I note that the Appellant did not controvert this assetion in the replying affidavit. I further note that the affidavit of service produced related to Nairobi CMCC No. 5812 of 2019 and not to the Small Claims Case No. E211 of 2021. Further, the alleged process server did not annex any proof such as a call log to demonstrate contact with the 1st Respondent. 11. The firm of Mugo Githinji & Co. Advocates, alleged to have been on record, swore an affidavit disowning any instructions from the 1st Respondent in the said small claims matter. 12. On the validity of the default judgment, the Appellant relied on the decision in Ali Bin Khamis vs. Salim Bin Khamis Kirobe & Others [1956] 1 EA 195, where the Court of Appeal for Eastern Africa held: “ Where an order is made without service upon a person who is affected by it, the order is a nullity and must be set aside ex debito justitiae. Procedural lapses will not deter the court from setting aside such an order.” 13. Reference was also made to the decision in Nderitu & Another vs. Marios Philotas Ghikas & Another [2016] KECA 470 (KLR), where the Court of Appeal affirmed that procedural defects cannot override the fundamental requirement of service before judgment is entered. 14. The Respondent, on the other hand, argued that the affidavit of service in question was disputed on account of its authenticity and relevance, and that the alleged process server had not demonstrated personal service. The Respondent observed that it was on this basis that the Small Claims Court found sufficient doubt to justify hearing the matter on merit. 15. It is trite that courts have the discretion to set aside ex parte judgments. In Shah vs. Mbogo [1967] EA 116 the East African Court of Appeal established an important principle of judicial discretion regarding the setting aside of ex parte judgments or extensions of time. In the said case, the court held that: “ The discretion of the court to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19407/eng@2025-11-20 3

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or error, but not to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 16. The principle that emerges from the above decision is that while courts have wide discretion to set aside judgments made in the absence of one party (ex parte judgments), that discretion must be exercised judiciously (not arbitrarily) based on sound legal reasoning and fairness. The decision further shows that the purpose of the discretion is to prevent injustice where a party failed to act due to a genuine mistake or excusable error but it should not be used to help those who are intentionally negligent, dishonest, or trying to delay justice. 17. In the present case, I note that the trial court set aside the ex-parte judgment upon satisfying itself that the reason for the default was excusable, that the defendant had a good defence and that reopening the case will not cause any harm/prejudice to the plaintiff. I am satisfied that the trial court exercised its discretion judiciously when setting aside the ex-parte judgment. Whether the 1st Respondent’s Application Was Overtaken by Events 18. The Appellant contended that setting aside the ex-parte judgment was futile as execution had been concluded. I however find that, as was held in James Kanyiita Nderitu & another vs. Marios Philotas Ghikas & Another [2016] KECA 470 (KLR) and Dhiman vs. Shah (Civil Appeal E380 of 2023) [2025] KECA 1264 (KLR), an irregular judgment is a nullity and its consequences fall with it. 19. It is my finding that the argument of the 1st Respondent’s application being overtaken by events has no legal basis when the impugned judgment was void ab initio. Whether the Review Was Merited 20. The Appellant sought review on the ground of “error apparent on the face of the record.” I however find that the issues raised in the review application involving service, representation, and effect of previous applications required factual determination and were subject to debate. 21. The Appellant invoked Order 45 Rule 1 of the Civil Procedure Rules, for the argument that the trial court ignored material evidence and affidavits already on record, thus constituting an error apparent on the face of the record. 22. The Respondent, on his part, countered this argument using the decision in Nyamogo & Nyamogo Advocates vs. Kago [2001] 1 EA 173, where the Court of Appeal held: “ There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. An error which has to be established by a long drawn process of reasoning or where two opinions may exist cannot be said to be an error apparent.” 23. My finding is that the court correctly appreciated that the issue of service and representation required evidential interrogation and was therefore unsuitable for review. This Court agrees that these were matters for appeal, not review. I find guidance in the decision in Namae vs. Kipkorir & Another [2024] KEHC 4115 (KLR where it was held that: “ A review being a continuation of the original judgment and not a fresh hearing, the court can only review its judgment where there is an error apparent on the face of the record, or discovery of new and material facts which the party could not with reasonable diligence have placed before the court when the judgment was delivered.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19407/eng@2025-11-20 4

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24. In this case, it is clear that the Appellant’s grievance was with the reasoning of the Adjudicator, not with a self-evident error. It is my finding that the review application was misconceived and the trial court properly dismissed it. Judicial Discretion and Substantive Justice 25. As I have already noted elsewhere in this judgment, the adjudicator’s decision to set aside the ex parte judgment was within the four corners of the principle espoused in Shah vs. Mbogo & Another (supra). In Mworia (Suing as Personal Representative of the Estate of Francis Ariithi Mworia) vs. Principal Secretary, Ministry of Land & Others [2023] KEELC 20456 (KLR), the appellate court observed that: “ The court has unfettered discretion to set aside an ex parte judgment on just terms to meet the ends of justice.” 26. I find that the adjudicator acted within lawful discretion under Section 3(3) of the Small Claims Court Act, which allows the court “to accord parties an equal opportunity to be heard.” 27. I therefore find no misdirection in the Adjudicator’s exercise of discretion, as reaffirmed in Price & Another vs. Hilder [1996] KLR 95, where it was held that an appellate court will not interfere with the trial court’s exercise of discretion unless the decision is clearly wrong or results in injustice. Competence of the Appeal 28. The instant appeal arises from the Adjudicator’s ruling declining to allow a review application. it is trite that review is an alternative remedy to an application as it is available where a party has opted not to appeal, I am persuaded that the Respondent correctly cited Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2013] KECA 347 (KLR), where the Court of Appeal held that: “ Review and appeal are intended to be alternative remedies.” 29. My finding is that having first sought a review of the same ruling, the Appellant was precluded from filing the instant appeal on the same issues that the Adjudicator declined to review. I find that the dual pursuit of review and appeal offends Order 45 of the Civil Procedure Rules. 30. It is my view that the attempt to disguise the appeal as arising from the dismissal of the review, while challenging the merits of the ruling dated 7th July 2025, renders this appeal procedurally incompetent. Costs 31. Section 27 of the Civil Procedure Act, stipulates that costs follow the event. Having regard to the fact that the Respondent has successfully defended the appeal, I find that the Appellant shall bear the costs of this appeal. Disposition 32. For the reasons that I have stated in this judgment, I make the following final orders: a. The appeal dated 21st October 2025 is hereby dismissed with costs to the 1st Respondent. b. The ruling and orders of the Small Claims Court delivered on 6th October 2025 are upheld. c. The matter shall proceed for hearing on the merits before the Small Claims Court as directed by Hon. Asiago. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19407/eng@2025-11-20 5

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DATED, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF NOVEMBER, 2025. HON. W. A. OKWANY JUDGE 20/11/2025 For Appellant ……………. For The Respondent ………… Court Assistant Ubah https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19407/eng@2025-11-20 6

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