Kyengo v Francis (Commercial Case E002 of 2026) [2026] SCC 88 (KLR) (22 April 2026) (Ruling) Neutral citation: [2026] SCC 88 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MOMBASA COMMERCIAL CASE E002 OF 2026 TN MWANGEKA, RM APRIL 22, 2026 BETWEEN PETER KIMEU KYENGO ........................................................................ CLAIMANT AND ELIEZER GITONGA FRANCIS ......................................................... RESPONDENT RULING 1. This ruling relates to a Notice of Motion Application dated 27th March 2026 seeking to set aside judgment and decree issued on 26th January 2026 ostensibly for the reason that the Applicant was not informed of the proceedings herein. 2. 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. 3. Rule 11(4) of the Small Claims Court Act 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. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/88/eng@2026-04-22 1
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4. Having considered the rival afidavits and annexures, this court is not satisfied that it should exercise its discretion in favour of the applicant. This is so as from the certificate of service filed that is those dated 15th August 2015, 3rd September 2025 and 8th September 2025, the Applicant was served with the statement of claim and full pleadings and was made aware of the progress of the suit at every stage. This was done via his whatsapp line which he does not dispute ownership of. 5. The Applicant’s contention is that the said whatsapp line was not in active use and that he has never opened any whatsapp messages from the respondent as the said phone has an outdated version of whatsapp. Additionally, in his further afidavit dated 9th April 2026, he attributes his inability to navigate the whatsapp platform to old age and adds that he sufiers from memory loss as per annexure marked PKK2. The court has combed through the annexures filed by both parties and finds that the Respondent is not being truthful. I say so because as per Respondent’s annexure EGF2, service upon the Applicant was efiected on whatsapp as well as via short messaging service which both show the notices were sent and received by the Applicant. 6. Since therefore the Applicant has not pleaded that the mobile handset was faulty in that it could not send or receive messages, the court finds that he was dully served and made aware of the proceedings herein. Further, the Applicant’s advanced age cannot be used as a crafty maneuver to gain sympathy from the court. Neither can the assertion that the Applicant sufiers memory loss, which I must add has not be fully substantiated as the annexure marked PKK2 recommends further investigations and neuroimaging to establish the extent of condition, which have not been furnished. Moreover, the said PKK2 is dated 8/4/2026, the instant application was filed on 27th March 2026. It is clearly an afterthought intended to embarrass, prejudice and abuse the court process. 7. 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). 8. All things considered; this court finds that the judgement entered on 26th January 2026 was regular. 9. Moreover, the applicant has not attached a draft defense for this court to peruse and determine whether there exist triable issues, which precondition must be meet in order to warrant setting aside of default judgment, as held in Githegi v Kondala Limited-Nestle [2022] KEHC 12577 (KLR). 10. Having arrived at the above finding on the subject of regularity of the judgment and the defence, I do not deem it necessary to consider the principle of prejudice. 11. Lastly, the Applicant states that the value of the goods as per the proclamation notice is thrice that of the decree thus the process amounts to unjust enrichment. This argument does not hold water as Rule 12(1)(b) of the Auctioneers Rules provides for an estimate value to be prepared for the goods which is not necessarily the market value. I rely on the High Court’s reasoning in Dominion Yards Auctioneers v Board of Management Nyangori Boys High School (Miscellaneous Case E018 of 2025) [2025] KEELRC 1508 (KLR) (21 May 2025) (Judgment) 12. Ultimately, the court hereby orders as follows: a. The Notice of Motion Application dated 27th March 2026 is dismissed with no orders as to costs. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/88/eng@2026-04-22 2
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b. Stay of execution issued on 30th March 2026 is hereby lifted. c. The Respondent/Decree Holder is at liberty to proceed and execute. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE…22ND…. DAY OF……… APRIL… 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; ……Mr. Githua… for Claimant; ……Ms. Muema… for Respondent C/A Sabina https://new.kenyalaw.org/akn/ke/judgment/scc/2026/88/eng@2026-04-22 3
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