High Court 2208 of 2026

4. An application for a stay pending appeal was filed by the appellant. Being satisfied on a prima facie basis that the application had merit, this court issued orders on 27th September 2024, staying execution of the judgment of the court below. On the said date, the court gave directions on how the appeal would be canvassed. Parties were given 21 days each to file and serve their respective submissions, beginning with the appellant. The court ordered the appellant to grant the respondent 30 minutes of access via video link every day until the appeal is heard and determined. Submissions of the Appellant 5. Both parties complied with the directions of the court. The submissions of the appellant are dated 27th May 2025. The appellant identified the issues for determination as being: a. Whether the court erred in dismissing the application dated 22nd January 2024; and b. Whether the appeal is merited. 6. Counsel for the appellant submitted that the trial court ought to have set aside the exparte judgment. He urged that the guiding principles the court ought to have considered were set out in the case of Esther Wamaitha Njihia & 2 others v Safaricom Limited [2014] KEHC 6699 (KLR). The said principles are whether the appellant had established sufficient cause, whether the defence raises triable issues, and whether the defendant can be compensated by way of costs. 7. Ms. Otuya, learned counsel for the appellant, urged that the appellant wasn’t served with a hearing notice for 21st August 2023 and that no affidavit of service was filed. She stated that, since this matter concerned the best interests of the child, both parties needed to be heard. 8. It was urged that proof of service was critical and without it the court had no discretion but to set aside an exparte order. Reference was made to the case of Ndima Tea Factory Limited v Joseph Mwaniki Muchira t/a Central Associates [2009] eKLR. She denied that the failure by the appellant to appear was deliberate 9. Counsel contended that the learned magistrate ought to have interrogated the issue of service in her ruling, but that she didn’t. Her failure to do so was deprecated. Reference was made to the case of Roy Parcel Services Limited v Boniface Shibutse Shibunyanga [2020] eKLR, where it was stated that: “ 23. 10. It is evident that the court was mistaken to allow the matter to proceed exparte without even a word as to whether the trial magistrate had seen the affidavit of service, and satisfied herself as to the service. There was nothing in the record to indicate that the learned trial magistrate actually saw and perused the Affidavit of Service to satisfy himself that indeed the defendant/appellant was served. This was necessary, as it was one of the reasons upon which the defendant was denied the right to be heard. It is evident that had the learned trial magistrate applied his mind to these matters, he would have arrived at a different decision.” On whether the draft defence raised triable issues, it was contended that it did. This was so because it raised issues concerning the fitness of the respondent to take care of the minor, her alleged abandonment of the minor since 2018, and the minor’s delicate condition as an autistic child. Counsel contended that the said issues warranted determination through a substantive hearing. Reliance was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2208/eng@2026-02-02 2

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placed on the case of Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR), where the court held that: “ What then is a defence that raises no bona fide triable issue? A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black's Law Dictionary defines the term “triable” as “subject or liable to judicial examination and trial”. It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court.” 11. Since the subject of the proceedings is a minor, it was submitted that her best interest ought to have been taken as paramount concern by the court below. Counsel submitted that it would be in the interest of justice that the decision be set aside. In support of the said contention, counsel relied on the case of JAM v FOK [2019] eKLR. 12. The appellant stated that the respondent would not be prejudiced if the appeal were allowed, as the appellant had had custody of the child since he was 2 years old. Taking into account his autistic condition, it was urged that he requires a gradual and carefully managed introduction to any changes in his environment. 13. It was therefore urged that the appeal be allowed with costs. Submissions of the Respondents 14. In the submissions dated 19th September 2024, the respondent saw in the appeal, “a veiled attempt to reverse the orderly administration of justice and to occasion manifest prejudice against the respondent by manipulating the process into a shield for indolence and a sword against the respondent.” 15. It was submitted that the appellant acted willfully to obstruct the trial. Counsel contended that the appellant was served with pleadings and afforded repeated opportunities to file a defence, but that he failed to do so and consistently absented himself from the proceedings. The appeal, it was contended, was without merit and was born of the appellant's indolence, calculated inaction, and blatant disregard of the lawful timelines. 16. The respondent identified issues for determination as being: 17. a. Whether the learned magistrate erred in law and fact in dismissing the appellant’s application dated 22nd January 2024 seeking to set aside a judgment; b. Whether the learned trial magistrate erred in finding that the appellant’s draft defence failed to raise any bona fide triable issues; c. Whether the trial court failed to consider material evidence and legal principles, particularly the best interest of the minor, in arriving at its determination; and d. Whether the decision of the learned trial magistrate constituted a misdirection, procedural impropriety, or miscarriage of justice warranting the intervention of the appellate court. Regarding the 1st issue, it was urged that the learned magistrate acted correctly in dismissing the application seeking to set aside the default judgment. Counsel urged that the appellant was served with pleadings and that he was given multiple opportunities to participate in the proceedings. She further urged that the right to be heard is preserved for those who were genuinely unable to attend court. Regarding the allegation that the appellant was unable to file documents due to technical challenges, Ms. Oluoch-Wambi contended that no proof of such difficulty was provided. In view of the foregoing, it was urged that the appellant did not meet the legal threshold for setting aside an exparte judgment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2208/eng@2026-02-02 3

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18. Did the draft defence raise triable issues? Counsel for the respondent contended that it did not, as what was alleged were general denials, unsupported allegations, and speculative insinuations, and that there was no factual rebuttal of what the respondent claimed. The draft defence was deprecated for not meeting the requirements of Order 7, Rule 5 of the Civil Procedure Rules. 19. Counsel for the respondent urged that the decision of the trial magistrate took into account the best interest of the child and that he made carefully calibrated orders. This, it was urged, was in keeping with modern jurisprudence on access, such as in the case of MMW v JWM & another [2024] KEHC 13393 (KLR), where the High Court endorsed the use of modern communication tools to facilitate access, while safeguarding the child’s emotional wellbeing. Counsel contrasted her client, who provided the court with material evidencing her concern for him, with that of the appellant, who didn’t. 20. On whether the court below misdirected itself, counsel denied that that was the case. Reliance was placed on the decision of the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), where it was held that mere disagreement as to the outcome of a ruling is not a ground for appeal. Counsel urged that there was no basis to interfere with the decision of the Court below. 21. It was thus urged that this court ought to dismiss the appeal, affirm the lower court’s ruling and judgment, and award costs to the respondent. Analysis of the Law 22. This is the first appeal; this court is under a duty to reevaluate and reassess the evidence adduced in the court below and make its own conclusion. 23. The duty of the first appellate Court was settled in the case of Selle and another v Associated Motor Board Company and Others [1968] EA 123, where their lordships stated as follows:“ .. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 24. Since the appeal is not about a finding on the merits, but rather, the exercise of a discretion by the trial court, the holding in the case of Mbogo and Another v Shah [1968] EA 93, is especially pertinent. In the said case, the Court stated that:“ …that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 25. I must first distil the issues that call for determination. In my view, these are: a. Whether the magistrate erred by failing to set aside exparte judgment; b. Whether the draft defence raises triable issues; c. Whether the decision of the children’s court took into account the best interest of the child; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2208/eng@2026-02-02 4

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d. What orders should issue; and e. Costs. I will look at each of these issues in turn. 26. It would appear to me that the appellant was served with the pleadings. This is evidenced by the affidavit of service, which was filed in the court below. The record of appeal shows that the appellant was granted innumerable opportunities to present his case and that he failed to do so. That being the case, there was a regular judgment. 27. In the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR), it was held that: “ From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another v. Shah (supra), Patel v. E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v. Kubende [1986] KLR 492 and CMC Holdings v. Nzioki [2004] 1 KLR 173).” 28. In CMC Holdings Ltd v James Mumo Nzioki [2004] KECA 143 (KLR), it was held that; “ We are fully aware that in an application before a court to set aside ex parte judgment, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously. On appeal from that decision, the Appellate Court would not interfere with the exercise of that discretion unless the exercise of the same discretion was wrong in principle or that the Court did act perversely on the facts. This is trite law, and there are many decided cases in support of the proposition. One such authority is that of Magunga General Stores vs Pepco Distributors [1987] 2 KAR 89, to which we were referred and in which this Court stated as follows:“ The Court on an appeal will not interfere with the exercise of a discretion on an application for summary judgment unless the exercise was wrong in principle or the judge acted perversely on the facts.” 29. My understanding of the foregoing is that the mistake or error must not be deliberate. My reading of the record, on the other hand, is that the appellant ignored the proceedings until the notice of show cause was issued, and that is when he acted. His conduct, to my mind, was willful and deliberate. 30. I am in agreement with counsel for the respondent that the appellant ought to have produced evidence of his diligence in trying to file documents through screenshots of the portal or correspondence with https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2208/eng@2026-02-02 5

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the registry. These were lacking. The holding in Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [2017] KECA 98 (KLR) is thus germane. 31. Regarding the draft defence, I am unable to disagree with the learned magistrate. What he was required to do was to peruse the defence and see whether there were bona fide triable issues raising reasonable grounds of defence worthy of judicial determination. In the case of Job Kilach v Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] KECA 846 (KLR), it was held that; “ A triable issue is said to exist if there is a dispute in the facts, which dispute can only be resolved after ventilation in a full hearing. In the case of Giciem Construction Company v. Amalgamated Trade & Services, LLR No 103 (CAK), this Court stated: “ As a general principle, where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, he ought to have leave to defend. Leave to defend must be given unless it is clear that there is no real substantial question to be tried; that there is no dispute as to the facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment.” (emphasis added) A bona fide triable issue need not be one that must succeed. This was stated by this Court in Olympic Escort International Co. Ltd. & 2 Others v. Parminder Singh Sandhu &Another [2009] eKLR (Civil Appeal 306 of 2002)in the following manner: “ It is trite that a triable issue is not necessarily one that the defendant would ultimately succeed on. It need only be bona fide.” 32. My assessment of the draft defence is that it was full of bare denials and made allegations. I agree with the learned magistrate that there was no triable defence. 33. When determining matters touching on children, the court should consider the best interests of the child. This injunction is explicitly set out in Article 53 of the Constitution and Section 8 of the Children Act. 34. The best interest is that of the child and not the parents. In my view, it would be in the best interest of the child to have the matter determined without delay. I note that the respondent provided material on what actions she intended to take to safeguard the child. In contract the appellant provided no evidence on what action he would take. My view of what the learned magistrate did is that he considered all the right principles and arrived at a decision that I cannot fault. 35. The appellant sought to deliberately hobble the trial in the court below. His conduct was willful and deliberate. There is therefore no justification for allowing him to prejudice the welfare of the child. 36. The children’s court does not normally award costs. I do not see a reason to depart from this practice in this case. Final Orders 37. The orders that command themselves to me are the following. a. The appeal is hereby dismissed; b. The decision of the court below is hereby upheld; and c. Each party shall bear its own costs https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2208/eng@2026-02-02 6

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38. It is so ordered. DATED AND SIGNED IN MOMBASA, THIS 2ND DAY OF FEBRUARY 2026. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Ms. Otuya, for the Appellant; Mr. Langat, holding brief for Ms. Oluoch Wambi, for the Respondent; and Ms. Bancy – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2208/eng@2026-02-02 7

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