Wambua v Vanga Transporters Ltd

The Applicant’s Case 5. The Applicant’s case is that interlocutory judgment was entered against it before it had led a Memorandum of Appearance and Defence. 6. According to the supporting adavit, the Applicant was served with summons but did not know what steps were required of it. It states that it was unaware that a Memorandum of Appearance was required to be led within fteen days. It thereafter sought legal advice and was subsequently advised that the summons ought to have been forwarded to its insurer for purposes of handling the claim. 7. The Applicant states that by the time the summons were forwarded to its insurer and advocates were instructed, interlocutory judgment had already been entered and the matter had been set down for formal proof. 8. The Applicant attributes the default to inadvertence and denies any intention to obstruct or delay the course of justice. It maintains that it has a meritorious Defence raising triable issues and that it ought to be aorded an opportunity to defend the claim on the merits. 9. The Applicant annexed a proposed Statement of Defence dated 13th March 2026. The Proposed Defence 10. I have considered the proposed Defence. The Applicant denies that at the material time it was the registered owner of Motor Vehicle Registration Number KDQ 303B as pleaded by the Plainti and puts the Plainti to strict proof thereof. 11. The Defendant further denies the occurrence and circumstances of the accident as pleaded. In particular, it denies that on 9th September 2024, or at all, the Plainti was a pedestrian at Unik Area along Likoni-Ukunda Road and was knocked by Motor Vehicle Registration Number KDQ 303B as a consequence of negligence attributable to the Defendant or its driver. 12. In the alternative, the Defendant pleads that if an accident occurred, which it denies, the same was wholly caused or substantially contributed to by the Plainti's own negligence. 13. The particulars pleaded against the Plainti include crossing the road without due care and attention; failing to use a pedestrian walk or designated zebra crossing; rushing and/or suddenly dashing into the path of Motor Vehicle Registration Number KDQ 303B; failing to take reasonable care for her own safety; and encroaching into the vehicle's path. 14. The Defendant further denies the applicability of the doctrine of res ipsa loquitur, denies liability whether vicarious or otherwise, and pleads volenti non t injuria. 15. The Defendant also disputes the injuries, special damages, future medical expenses and permanent disability pleaded by the Plainti and seeks a second medical examination of the Plainti. It additionally disputes service of the statutory demand or notice pleaded by the Plainti. 16. The Defendant ultimately seeks dismissal of the Plainti’s claim with costs. Submissions 17. The Defendant framed two issues for determination in its submissions: a. Whether the proposed Defence raises triable issues constituting a prima facie defence; andWhether setting aside the interlocutory judgment would cause prejudice to the Plainti. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/838/eng@2026-08-27 2

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18. Reliance was placed on Philip Keipto Chemwolo & Mumias Sugar Co. Ltd v Augustine Kubende, as cited in Christine Jebor John v Jackson Naibei & another, for the proposition that the Court has wide discretion to set aside a default judgment upon such terms as are just, and that where judgment was regularly entered, the existence of a triable issue is a material consideration. 19. The Applicant also relied on Desbro (Kenya) Limited v Polypipies Limited & Another, Job Kiloch v Nation Media Group Ltd & others, and Koskei v Koskei, for the proposition that a triable issue need not ultimately succeed; it is sucient that it raises a genuine question deserving investigation at a full trial. 20. On prejudice, the Applicant submits that any inconvenience occasioned to the Plainti through reopening the matter can adequately be compensated by costs, whereas refusal to set aside the interlocutory judgment would expose the Defendant to formal proof and potentially execution without having its Defence heard. 21. The Applicant further relied upon Shah v Mbogo and Times U Savings and Credit Co-operative Society Limited v Njuki & another, emphasizing that the discretion to set aside should be exercised to avoid injustice or hardship while at the same time not assisting a litigant who has deliberately sought to obstruct or delay justice. Issues for Determination 22. Having considered the application, the supporting adavit, the proposed Defence, the written submissions and the authorities placed before me, I am of the view that the following issues arise for determination: a. Whether the interlocutory judgment should be set aside; b. Whether the proposed Defence raises bona de triable issues; c. Whether the Plainti would suer prejudice incapable of compensation by an award of costs; and d. What orders should issue as to costs and the further conduct of the matter. Whether the Interlocutory Judgment Should Be Set Aside 23. Order 10 Rule 11 of the Civil Procedure Rules confers upon the Court discretion to set aside or vary a judgment entered in default and any consequential decree or order upon such terms as are just. 24. The discretion is wide, but it is a judicial discretion. It must be exercised upon reason and having regard to the circumstances of the particular case. 25. The authorities relied upon by the Applicant demonstrate two important and complementary principles. First, a litigant ought, wherever reasonably possible, to be aorded an opportunity to have its dispute determined on the merits. Secondly, the discretion to set aside is not intended to reward deliberate obstruction, evasion or conduct calculated to delay the administration of justice. 26. In Shah v Mbogo, the guiding principle was stated to be that the discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but not to assist a person who has deliberately sought to obstruct or delay the cause of justice. That principle remains applicable to the application presently before me. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/838/eng@2026-08-27 3

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27. From the Applicant's own adavit, it is evident that summons were served upon it. The Applicant does not contend that the interlocutory judgment resulted from absence of service. Its explanation is that, after service, it did not appreciate the procedural steps required of it and subsequently had to refer the matter to its insurer. 28. In those circumstances, and on the material presently before the Court, there is no sucient basis upon which I could describe the interlocutory judgment as irregular merely on account of want of service. 29. The question therefore becomes whether, notwithstanding the regularity of the judgment, this is a proper case for the Court to exercise its discretion in favour of the Defendant. 30. The explanation advanced by the Defendant is not particularly compelling. A corporate litigant which has been formally served with court process is expected to act diligently and take timely steps to protect its interests. Lack of knowledge of the requirement to enter appearance does not, by itself, absolve a litigant of the consequences of default. 31. Nevertheless, the explanation cannot be considered in isolation. The Court must examine the entire circumstances, including the nature of the proposed Defence, whether the default appears deliberate, the stage reached in the proceedings and the prejudice likely to be suered by either party. 32. There is no material presently before me demonstrating that the Defendant deliberately refrained from entering appearance for the purpose of obstructing or delaying the Plainti's claim. Its account is that it sought advice and thereafter forwarded the claim to its insurer, albeit belatedly. 33. Further, the suit has not proceeded through formal proof to nal determination. The stated formal proof date is 24th September 2026. The Court is therefore dealing with the application at a stage at which the prejudice arising from reopening the proceedings can still substantially be addressed by appropriate orders as to costs and timelines. Whether the Proposed Defence Raises Triable Issues 34. This is, in my view, the decisive consideration. A Court considering an application of this nature is not required to conduct a mini-trial of the proposed Defence. Neither is the Defendant required at this stage to establish that its Defence will ultimately succeed. 35. What the Court must determine is whether the proposed Defence raises at least one bona de issue deserving determination upon evidence. 36. In Desbro (Kenya) Limited v Polypipies Limited & Another, the Court emphasized that a triable issue is not necessarily an issue which will ultimately succeed; it is one which warrants judicial interrogation at trial. 37. Similarly, the authorities reproduced in the Applicant's submissions emphasize that denying a litigant a hearing should ordinarily be the Court's last resort where a genuine defence has been brought to its attention and any delay can reasonably be compensated by costs. 38. In the present case, the proposed Defence raises several substantive matters. First, the Defendant disputes its alleged ownership and/or involvement in respect of Motor Vehicle Registration Number KDQ 303B. Ownership and involvement in the accident are plainly matters which, if genuinely disputed, require evidential determination. 39. Second, liability is contested. The Defendant denies negligence and, in the alternative, specically pleads negligence and contributory negligence against the Plainti. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/838/eng@2026-08-27 4

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40. Contributory negligence is not a peripheral matter. If established, it may materially aect the apportionment of liability and consequently the quantum ultimately recoverable. 41. Third, the Defendant disputes the nature and extent of the Plainti's injuries, permanent disability, special damages and future medical expenses and seeks a second medical examination. 42. Those are issues which ordinarily require medical evidence and evidential testing at trial. 43. I therefore nd that the proposed Defence cannot fairly be characterised as a sham or a mere general denial. Whether the Defendant will ultimately prove its allegations is an entirely dierent question and one which cannot properly be determined at this stage. 44. I am consequently satised that the proposed Defence raises bona de triable issues deserving adjudication on the merits. Prejudice 45. The Plainti obtained interlocutory judgment following the Defendant's failure to take the necessary procedural steps within time. Reopening the proceedings will inevitably occasion some delay and will deprive the Plainti, at least temporarily, of the procedural advantage already obtained. That prejudice is real and should not be disregarded. 46. On the other hand, if the interlocutory judgment remains in place, the Defendant will be excluded altogether from advancing a Defence which this Court has found raises genuine issues regarding ownership/involvement, liability, contributory negligence and damages. 47. The prejudice on the two sides is therefore qualitatively dierent. The Plainti's principal prejudice is delay and additional costs. The Defendant's prejudice would be the loss of an opportunity to contest substantive liability. 48. In Times U Savings and Credit Co-operative Society Limited v Njuki & another, the High Court considered a comparable question and held that, notwithstanding negligence in the manner in which the matter had been handled, the right to be heard could, in the circumstances of that case, be preserved, with prejudice occasioned through delay being addressed by an award of costs. I am persuaded that the same broad approach is appropriate here. 49. The discretion to set aside must not be exercised as a punishment for procedural default. The Court's objective is ultimately to determine the rights of the parties fairly while ensuring that procedural lapses do not occasion injustice to the innocent party. 50. In the circumstances, the Plainti can adequately be protected through costs and strict timelines for the future conduct of the proceedings. Disposition 51. Having weighed the explanation for the default, the nature of the proposed Defence, the stage reached in the proceedings and the respective prejudice likely to be suered by the parties, I am satised that this is an appropriate case in which the Court should exercise its discretion in favour of the Defendant/ Applicant. 52. The Defendant's failure to enter appearance and Defence within time cannot be condoned. However, I do not consider that failure, in the circumstances presently disclosed, sucient to permanently shut the Defendant out from defending a claim in which substantive questions of liability and quantum remain contested. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/838/eng@2026-08-27 5

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53. The interests of justice will best be served by setting aside the interlocutory judgment, subject to terms that protect the Plainti from the consequences of the Defendant's default and ensure that the matter proceeds expeditiously. Orders 54. Accordingly, the Notice of Motion dated 16th July 2026 is allowed on the following terms: a. The interlocutory judgment entered against the Defendant/Applicant, together with all consequential ex parte proceedings and orders arising therefrom, is hereby set aside. b. The proposed Statement of Defence annexed to the supporting adavit shall be led and served within seven (7) days from the date hereof upon payment of the requisite court fees. c. The Defendant's List of Witnesses, witness statements and List and Bundle of Documents shall similarly be led and served within the said period to the extent that the same have not already been duly led. d. The Plainti shall be at liberty to le any reply to Defence and/or supplementary documents necessitated by the Defence within fourteen (14) days of service. e. The formal proof hearing scheduled for 24th September 2026 is hereby converted into the hearing of the suit on merits, and the matter shall proceed for hearing on that date. f. The parties shall comply with all outstanding pre-trial requirements before the hearing date to ensure that the matter proceeds on 24th September 2026 without delay. g. In view of the fact that the present application was occasioned by the Defendant's failure to act within the prescribed time, the costs of the application are awarded to the Plainti/ Respondent in any event. h. The parties are reminded that the indulgence granted to the Defendant is intended to facilitate determination of the dispute on its merits and not to provide an opportunity for further delay. The matter shall henceforth be prosecuted expeditiously. Orders accordingly. DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026. ……………………… HON.E.M. MWAMUYE SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/838/eng@2026-08-27 6

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