Ng’ang’a v Githuku

Analysis and determination 5. The sole issue for determination is whether the Defendant has met the legal threshold for setting aside the judgment entered on 17th May 2016. 6. The power of the Court to set aside a default judgment is conferred by Order 10 Rule 11 of the Civil Procedure Rules, which provides: “ Where judgment has been entered under this Order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.” 7. The principles guiding the exercise of that discretion are settled. In Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the Court of Appeal held that the discretion to set aside is wide and is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a person who has deliberately sought to obstruct or delay the course of justice. 8. Further, in Shah v Mbogo & Another [1967] EA 116, the Court stated that the discretion is to be exercised to prevent injustice or hardship resulting from accident, inadvertence or excusable error. 9. A distinction must be drawn between a regular and an irregular judgment. In James Kanyita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR, the Court of Appeal held that where a judgment is irregular for want of service, the court will set it aside ex debito justitiae. However, where the judgment is regular, the court exercises discretion and considers, inter alia, whether there is a plausible defence and whether there has been undue delay. 10. The Defendant contends that he was unaware of the suit. The record, however, contains affidavits of service sworn by Benjamina N. Mutua on 16th May 2016, evidencing that summons to enter appearance were duly served upon him. Upon the Defendant’s failure to enter an appearance or file a defence within the prescribed timelines, the Plaintiff lodged a Request for Judgment dated 16th May 2016. Consequently, an interlocutory judgment was entered on 26th August 2016, ordering the Defendant to pay the Plaintiff the sum of Kshs. 2,400,000 or, in the alternative, permitting the Plaintiff to sell land parcel Trans Nzoia/Gidea/35 to recover the outstanding consideration. 11. The Court has carefully perused the affidavits of service on record and is satisfied that service was properly effected, and that judgment was regularly entered following the Defendant’s failure to comply with the procedural requirements of entering an appearance and filing a defence. The Defendant has neither applied to cross-examine the process server nor tendered any cogent or credible material to impeach the veracity of the affidavits of service. 12. It is trite that an affidavit of service constitutes prima facie evidence of proper service. Where service is disputed, the evidential burden shifts to the applicant to rebut that presumption by credible evidence. A bare and general denial is insufficient to displace the presumption of regularity attaching to judicial proceedings. 13. In the absence of credible evidence rebutting service, I am satisfied that the interlocutory judgment entered on 17th May 2016 was regular. 14. Where judgment is regular, the Court must consider whether the Defendant has demonstrated a defence raising triable issues. Even one triable issue is sufficient to entitle a defendant to unconditional leave to defend - See Tree Shade Motor Limited v D.T. Dobie & Company (K) Limited [1995–1998] 1 EA 324. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3488/eng@2026-03-12 2

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15. In the present case, the Defendant has not annexed a draft defence nor set out the nature of the defence he intends to raise. The application is bare and does not disclose any arguable or triable issue. A party seeking the court’s discretion must demonstrate that he has a defence on the merits. A mere assertion that he was unaware of the proceedings does not suffice. 16. Equally significant is the delay. Judgment was entered in May 2016. The present application was filed in May 2025, approximately nine years later. No satisfactory explanation has been offered for this inordinate delay. Equity aids the vigilant, not the indolent. Inordinate delay defeats equity and undermines the integrity of judicial proceedings. 17. The material placed before the Court further suggests that the Defendant instituted parallel proceedings relating to the same subject matter, which militates against his assertion that he was unaware of the dispute. That conduct lends credence to the Respondent’s contention that the application is an attempt to reopen concluded litigation. 18. The discretion under Order 10 Rule 11 is not designed to aid a litigant who has slept on his rights or who seeks to obstruct the course of justice. 19. In the premises, I find that the interlocutory judgment entered on 17th May 2016 was regular, that no triable issue has been disclosed, and that the delay of approximately nine years is inordinate and unexplained. 20. Accordingly, the Notice of Motion dated 12th May 2025 is devoid of merit and is hereby dismissed with costs to the Plaintiff/Respondent. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF MARCH 2026. P.M. MULWA JUDGE In the presence of: N/A for Plaintiff/Respondent Mr. Ojienda for Defendant/Applicant Court Assistant: Carlos https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3488/eng@2026-03-12 3

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