Waswa v Automega Ltd & another (Civil Case E019 of 2025) [2025] KEMC 390 (KLR)

pre-trial documents contrary to the provisions of the Insurance (Motor Vehicle Third Party Risks) Act and the Civil Procedure Rules. 5. The Affiant further averred that the Plaintiff’s advocate acted prematurely by filing a Request for Interlocutory Judgment against the Applicant on 07th February 2025 having served the Applicant with Summons to Enter Appearance on 24th January 2025. 6. Finally, it was urged on behalf of the Applicant that no interlocutory judgment had been entered against the Applicant, that the Applicant has an arguable defense against the Respondent’s claim herein, and that the Respondent will not suffer substantial loss, hence the instant Application ought to be allowed. 7. The Plaintiff/Respondent opposed the instant Application through a Replying Affidavit sworn by the Respondent on 08 th May 2025, terming the said Application as frivolous, vexatious, an abuse of the court process, bereft of merit. 8. The Respondent averred that the Applicant’s insurer was duly served the Statutory Notice dated 21st January 2025 (JN1(a)) and a Notice of Institution of suit dated 21st January 2025 JN1(b) as evidenced by the Certificate of Postage dated 21st January JN1(c). ANALYSIS & DETERMINATION 9. This court has duly considered the Pleadings filed by the parties, the submissions filed, and the authorities relied upon by either party. It is worth noting that the Applicant did not file their submissions. 10. The only issue that commend to this court for determination is whether the instant Application is merited. 11. Order 36 rule 7 of the Civil Procedure Rules cited by the Applicant in support of the instant Application grants this court the discretion to grant a party leave to defend a suit conditionally or unconditionally. 12. The instant Application seeks to have this court enlarge the Applicant’s time to enter appearance and file a Statement of Defence. That being the case, it is this court’s considered view that the provisions Bungoma CMC CC. NO. E019 of 2025 Page 2 of 8 Ruling

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of section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules also apply in determining the instant Application. 13. In Harun Osoro Nyamboki v Peter Mujunga Gathuru(2017)eKLR, the court expressed itself as follows on what to consider when faced with such an Application before this court; “In determining such an application for time extension, the court has to consider whether the explanation given for any delay is reasonable and credible, whether there also exist extenuating circumstances to enable the court exercise its unfettered jurisdiction; and that the delay, in any event, should not be so inordinate as to leave no doubt, that an applicant has been slothful and filed such an application as an afterthought.” 32. This court will proceed to determine whether the Applicant has satisfied the principles set out in the authority above. 33. The Applicant averred that they failed to file their defence within the prescribed period since the Respondent failed to serve the Applicant’s insurer with the requisite documents as provided for in the Insurance (Motor Vehicle Third Party Risks) Act and the Civil Procedure Rules. This averment was discounted by the Respondent who placed before this court a Statutory Notice dated 21st January 2025 (JN1(a)) and a Notice of Institution of suit dated 21 st January 2025 JN1(b) that were posted to the Respondent as evidenced by the Certificate of Postage dated 21st January JN1(c). 34. In any event, failure to serve a Statutory Notice, Summons To Enter Appearance, Plaint and other pretrial documents upon a party’s insurer as required under the Insurance (Motor Vehicle Third Party Risks) Act , does not permit the insured to fail to file a Statement of Defence within the prescribed time. Non-compliance with the provisions of the Insurance (Motor Vehicle Third Party Risks) Act by a Plaintiff only becomes of significance to an insurer during execution or in a declaratory suit. Bungoma CMC CC. NO. E019 of 2025 Page 3 of 8 Ruling

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35. It is noteworthy that the Affiant averred under oath that the Applicant was duly served with the Summons to Enter Appearance in this matter on 24 th January 2025. 36. The foregoing shows that there was no reasonable cause for the Applicant to file their Statement of Defence within the prescribed period. 37. On the question of whether there was inordinate delay before filing of the instant Applicant, the court notes that interlocutory judgment against the Defendants was endorsed on 25th February 2025. The instant Application on the other hand was filed on 30th April 2025. 38. The Affiant averred that no interlocutory judgment had been entered/endorsed in this matter. They added that the Request for Judgment dated 07th February 2025 filed by the Respondent’s counsel was filed prematurely since the fifteen days within which the Applicant was expected to enter appearance had not lapsed. 39. Whereas it is given that the Request for Judgment herein was filed before the lapse of the statutory timelines, it is noteworthy that the same was endorsed on 25th February 2025, almost thirty (30) days after the Applicant had been duly served with the summons to enter appearance herein. 40. In the circumstances, this court finds and holds that the interlocutory judgment entered against the Defendants herein was lawfully endorsed. The same is regular. 41. Having found that the interlocutory judgment herein was regular, it follows that the Applicant filed the instant Application after around two months from the date of the said interlocutory judgment. Does that constitute unreasonable delay? 42. In Jaber Mohsen Ali & Another v Priscillah Boit & Another E & L No. 200 of 2012 {2014} eKLR the Court stated that what is unreasonable delay is dependent on the circumstances of each case. That even one day after Bungoma CMC CC. NO. E019 of 2025 Page 4 of 8 Ruling

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Judgment/Ruling could be unreasonable delay depending on the Judgment/Ruling of the Court and any order given thereafter. 43. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the court was of the view that: “The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 44. The authorities above show that what constitutes unreasonable delay depends on the circumstances of each case, and that in the absence of a plausible explanation for any delay, such delay is not excusable. 45. The Applicant has not given any plausible explanation why the instant Application was filed almost over two months after the endorsement of the interlocutory judgment against him. 46. To this court’s mind, an unexplained two-month delay constitutes unreasonable/inordinate delay. 47. Turning to the issue of whether there exist extenuating circumstances that permit this court to exercise its jurisdiction in favour of the Applicant, this court has had the benefit of going through the Applicant’s proposed Statement of Defence. The said Defence raises triable issues. Such issues need to be determined through a full hearing. 48. The right to be heard is a well-protected right in our Constitution and is also the cornerstone of the rule of law. Such a right should only be taken away from a party in the clearest of cases where a party has acted out of mischief and malice but not in instances like the ones obtaining in this case where an Applicant’s proposed Statement of Defence raises triable issues. Bungoma CMC CC. NO. E019 of 2025 Page 5 of 8 Ruling

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48. The position above finds support in the sentiments of Apollo JA in Philip Keipto Chemwolo & another v Augustine Kubende (1986) eKLR, where the learned judge rendered himself thus: Blunders will continue to be made from time to time and it does not follow that because a mistake has been made, that a party should suffer the penalty of not having his case heard on merit . . . the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.” 49. It is also this court’s considered view that any prejudice occasioned to the Respondent by allowing the Applicant to file their Statement of Defence out of time can be remedied by payment of throw-away costs. 50. Whereas this court has made a finding that there is a need for the Applicant to have his day in court, this court notes that the Applicant did not pray for the setting aside of the interlocutory judgment entered against them. 51. The law in this jurisdiction is that parties are bound by their pleadings. Generally speaking, a court can not grant a prayer not sought by a party. However, the Court of Appeal in Lamba v National Social Security Fund & another (Civil Appeal E168 of 2021) [2023] KECA 124 (KLR) permitted courts to make appropriate orders as they deem fit in a trial by stating as follows: “It is trite law that courts can only grant orders that have been prayed for in the pleadings, or make appropriate orders as it deems fit if need arises in the cause of a trial...” 52. Guided by the Lamba case (supra), Article 159 (2) (d) of the Constitution of Kenya, and the overriding objective of the Civil Procedure Act, this court sets Bungoma CMC CC. NO. E019 of 2025 Page 6 of 8 Ruling

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aside, suo moto, the interlocutory judgment herein entered against the Applicant on 25th February 2025. DETERMINATION 53. Consequently, the Notice of Motion Application dated 30 th April 2025 is merited and is allowed in the following terms that; a) The interlocutory judgment entered against the 02 nd Defendant/Applicant on 25th February 2025 is set aside b) The 2nd Defendant/Applicant is granted leave to file its defense out of time and that Defendant’s Statement of Defence attached hereto is deemed duly filed upon payment of the requisite court fees c) The parties herein to comply with order 11 within 14 days from the date hereof d) The 2nd Defendant/Applicant to pay the Plaintiff/Respondent throw away costs of Kshs. 20,000/=, and the costs of Kshs. 5,000/= awarded to the Plaintiff/Respondent on 06th May 2025, within 14 days from the date hereof, failing which the suit shall proceed as undefended. It is so ordered. Read, signed, and delivered in open court at Bungoma this 13 th day of May 2025 T.O. OMONO RESIDENT MAGISTRATE In the presence of: Ms. Wesonga for the Plaintiff/Respondent C/A: Albert Bungoma CMC CC. NO. E019 of 2025 Page 7 of 8 Ruling

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