Carton Experts Ltd v Kenya Medical Research Institute (Civil Case E063 of 2026) [2026] SCC 69 (KLR) (11 May 2026) (Ruling) Neutral citation: [2026] SCC 69 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MOMBASA CIVIL CASE E063 OF 2026 TN MWANGEKA, RM MAY 11, 2026 BETWEEN CARTON EXPERTS LIMITED ................................................................ PLAINTIFF AND KENYA MEDICAL RESEARCH INSTITUTE .................................... DEFENDANT RULING 1. This ruling relates to a Notice of Motion Application dated 1st April 2026 seeking to set aside judgment and decree dated 26th March 2026 ostensibly for the reason that the Applicant’s insurance agent failed to forward the pleadings herein to Gemina Insuarance Company and that there exist triable issues for the court to consider. 2. Rule 11(4) of the Small Claims Court Act Rules stipulates that default judgement may be set aside if the court is satisfied on the evidence given that the default was inadvertent, the application has a valid defense with a probability of success or there are suficient grounds to warrant setting aside the default judgment. 3. In James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR) the Court of Appeal delivered itself thus: 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 sufier; whether on the whole it is in the interest of justice to set aside the default judgment, among other. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/69/eng@2026-05-11 1
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4. The court’s discretion to set aside ex-parte judgement or order for that matter, is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but not to assist a person who deliberately seeks to obstruct or delay the course of justice. This is done in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties as reasoned by the court in Landmark Freight Services Limited v Zakhem International Limited [2021] KEHC 3772 (KLR). 5. I note that in Landmark Freight Services Limited v Zakhem International Limited [2021] KEHC 3772 (KLR) the court went ahead and set aside the judgment, despite proper service. 6. It is therefore clear from the aforesaid that the court has power to set aside the default judgment and allow an Applicant to file a suitable defence. However, such leave is not to be granted as a matter of course. The court must satisfy itself that there is a good explanation that has been ofiered to set aside such judgment and upon such terms that it would deem fit in the circumstances for the reason that such action would definitely be taking a Respondent back in time especially since judgment had been issued. 7. Presently, having considered the record, rival afidavits, annexures, the draft defence by the Applicant as well as the written submissions by the parties and guided by the law, it is not disputed that the Applicant was aware of the proceedings against them but did not turn up in court on 19th March 2026 and 26th March 2026 to either enter appearance or request leave of court to file a response. 8. The court therefore went ahead and entered default judgment against the Respondent/Applicant on 26th March 2026 which this court finds to be a regular judgment. 9. The explanation ofiered by the Applicant for their non-attendance is that their insurance agent failed to forward the pleadings filed to Gemina Insuarance Company for their action. This court finds the said explanation untenable as the Respondent has an obligation to enter appearance and defend the suit within the prescribed timelines. 10. Considering pleadings were first served upon the Applicant on 2nd March 2026, the Applicant should have been vigilant in following up to ensure that they are properly on record. They slept on their rights. 11. However, turning to the draft defence filed, the same raises the issue of contributory negligence on the part of the Claimant for the accident and disputes the manner in which the accident occurred as pleaded by the Claimant. In this court’s view, the same constitute triable issues. I am guided by the decision in Saicare Enterprises Limtied v Mana Pharmacy & another [2020] KEHC 9625 (KLR) wherein the court while relying on Richard Murigu Wanyai –Vs – Attorney General & Another [2018] eKLR held that; the Court should not solely concentrate on the poverty of the Applicant’s excuse for not entering appearance or filing a defence within the prescribed time. The nature of the action should be considered, the defence if one has been brought to the notice of the court however irregularly should be considered, the question as to whether the Plaintifi can reasonably be compensated by costs for any delay occasioned should be considered, and finally I think it should always be remembered that to deny the subject a hearing should be the last resort of a court. 12. Finally, I find that there is no prejudice the Claimant/Respondent is likely to sufier if this application is allowed and the claim heard on merit. Accordingly I do make the following orders:a) The default judgment entered on 26th March 2026 and all orders consequential thereto be and are hereby set aside. b) The Applicant/Respondent are granted leave to defend this claim and the Response to Claim dated 30th March 2026 is deemed properly filed and on record. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/69/eng@2026-05-11 2
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c) The said defence to be served within seven (3) days hereof. d) The Applicant/Respondent to pay costs of Kshs.10,000/=. e) The file will be mentioned on 13th May 2026 before Hon. J.W.Mwangi for directions. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE 11TH DAY OF MAY 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; Ms. Magoma…. for Claimant; Ms Atieno.… for Respondent C/A Sabina https://new.kenyalaw.org/akn/ke/judgment/scc/2026/69/eng@2026-05-11 3
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