Morris & 1 other v Festus & 2 others

4. The applicant admits that upon being served with the summons to enter appearance, he instructed the firm of Wamache and Associates Advocates on the 25th September 2025 to enter appearance and file a defence on his behalf. 5. It is the applicant’s contention that the firm of Wamache and Associates Advocates successfully obtained approval for mapping into the Judiciary E-Filing portal, but failed to file the requisite pleadings. For this reason, the applicant contends that the failure to file the requisite pleadings was not deliberate, was not a mistake on his part and that the same was beyond his control and intention. 6. The applicant further avers that his wife died on the 4 th November 2025 after a prolonged illness which occasioned immense emotional distress on him, that led him to the inadvertent failure to keep a keen follow-up on the progress of the case. That on 9 th December 2025 he visited the court’s registry to check up on the case progress and was informed that no documents were filed on his behalf. That it is at that point that he instructed his current advocates to enter appearance and moved this court without undue delay. 7. In a nutshell, the applicant contends that his act of instructing the firm of Wamache & Associates Advocates to enter appearance and file a defence, and where mapping was approved, was a clear sign of his willingness to participate in the proceedings and defend the claim against him. 8. The application is opposed by the plaintiff/respondent vide the replying affidavit sworn on the 18th December 2025. He contends that the applicant was duly served with summons to enter appearance and the firm of Wamache and Associates Advocates filed their Notice of Appointment but failed to file any defence or pleadings. MERU HCCC NO. E017 OF 2025 2

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9. The respondent further contends that if the orders sought are to be granted, the applicant ought to deposit the entire sum of Kshs. 50,883,058/= for the reasons that proper service of summons was effected and that the applicant’s annexed defence raises no triable issues. 10. Both parties filed their submissions and this court has had the advantage of perusing them. 11. The issue for consideration is whether sufficient grounds have been laid to warrant a grant of the orders sought. 12. It is not in dispute that the applicant was served with summons to enter appearance and that the period for entering appearance and filing of defence lapsed. Subsequently, interlocutory judgment was entered against the applicant. Being a claim for a liquidated amount, the interlocutory judgment is essentially a full judgment. 13. Order 10 Rule 11 of the Civil Procedure Rules provides as follows; “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.” 14. Since the applicant admits that he was duly served with the summons, the interlocutory judgment was regularly entered. 15. Therefore, the matter calls for the discretion of the court. The nature of the discretion was reiterated in Shah vs Mbogo (1967) EA 166, where the court held as follows; “Firstly, there are no limits or restrictions on the judge’s discretion to set aside except that if the judge does vary the Judgment he does so on such terms as may be just. MERU HCCC NO. E017 OF 2025 3

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The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. Secondly, the discretion to set aside is intended, to be so exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 16. Similarly, in James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) the court set out the conditions for grant of an order to set aside interlocutory judgment and held that; “There are sufficient reasons for the defendant's failure to enter appearance or file a defence, the length of time that has elapsed since the default judgment was entered is not inordinate, the intended defence raises triable issues, there is no prejudice likely to be suffered by each party and that it is in the interests of justice to set aside the judgment.” 17. The applicant contends that after service of summons, he instructed the firm of Wamache & Associates Advocates on 25 th September 2025 who drew the Notice of Appointment of Advocates of even date and had approval for mapping into the judiciary E-filing portal. 18. I have looked at the Case Tracking System (CTS) and it is clear that on 29th September 2025, the firm of Wamache and Associates Advocates were duly mapped to it. No document was ever filed by the said firm. This confirms that the applicant had duly instructed the said firm, and on time. MERU HCCC NO. E017 OF 2025 4

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19. The applicant further contends that his wife passed away on the 4 th November 2025 after prolonged illness and due to the emotional distress, he was unable to follow up on his case. He annexed a copy of the burial permit which shows that his spouse, Damaris Mutindi Kalulu, passed away on 4th November 2025. 20. This court is persuaded that the emotional distress the applicant had at the time would have been a probable cause as to why he was not able to keep a keen look of his case. Finding otherwise would be quite inhumane. 21. I find that the reasons adduced are plausible. The mistake of the advocate should not visit upon the defendant. 22. This application was brought on the 15 th December 2025, exactly 5 days after the entry of interlocutory judgment. In my view, there was no inordinate delay in filing the application. 23. Annexed to the instant application is a draft statement of defence by the applicant. The applicant has denied the respondent’s allegations contained in the plaint and has disassociated himself from them. 24. The court in Flora Cherono v Mary Njihia & 7 others [2020] KEELC 1521 (KLR) relied on the case of Patel v EA Cargo Handling Services Ltd [1974] EA 75 which defined triable issues as follows; “The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. I agree that where it is a regular judgment as is the case here, the court will not usually set aside the judgment unless it is satisfied that there is a defense on the merits. In this respect defense on the merits does not mean, in my view, a defense that must MERU HCCC NO. E017 OF 2025 5

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succeed, it means as Sheridan J put it "a triable issue" that is an issue which raises a prima facie defense and which should go to trial for adjudication.” 25. From the foregoing, this court is persuaded that the draft defence raises triable issues and in the interest of justice the applicant should be allowed to defend the suit. 26. Having considered the application, the respondent’s replying affidavit and the submissions filed by the parties, this court finds that the instant application is merited and succeeds in the following terms; a. That the interlocutory judgment entered on the 10 th December 2025 is hereby set aside. b. That the applicant shall pay a sum of Kshs. 20,000/= as thrown away costs to the respondent within the next 30 days. c. That the applicant is directed to file and serve his defence within 14 days from the date hereof. d. The order of filing further pleadings and all documents shall follow as set out under the Civil Procedure Rules. e. In default of payment of the thrown away costs, the judgment shall be reinstated automatically without further reference to the court. f. A date for pre-trial directions shall be given after the delivery of this ruling. Dated, signed and delivered at Meru this 18 th day of August 2026. H. M. NYAGA JUDGE MERU HCCC NO. E017 OF 2025 6

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MERU HCCC NO. E017 OF 2025 7

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