Asgher v Wakio (Commercial Case E490 of 2025) [2026] SCC 110 (KLR) (8 April 2026) (Ruling) Neutral citation: [2026] SCC 110 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MOMBASA COMMERCIAL CASE E490 OF 2025 TN MWANGEKA, RM APRIL 8, 2026 BETWEEN BAJWA MUHAMMAD ASGHER ............................................................ CLAIMANT AND AGNELLA WAKIO .............................................................................. RESPONDENT RULING 1. This ruling relates to a Notice of Motion Application dated 26th February 2026 seeking to set aside judgment and decree issued on 26th June 2025 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. Having considered the rival afidavits, annexures, the draft defence by the Applicant as well as the written submissions by the parties, 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 of 6th May 2025, 19th May 2025 and 9th June 2025 together with the email correspondences on record, this court is satisfied that the Applicant was made aware of the dispute at every stage. So much so that the applicant even engaged in negotiations with the Respondent/ Decree Holder with https://new.kenyalaw.org/akn/ke/judgment/scc/2026/110/eng@2026-04-08 1
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the aim of resolving the same amicably. I find that the Applicant has not filed this application with clean hands at all. 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. The operating circumstances were however markedly difierent from those herein in, in that the defendant therein raised triable issues and the amount in dispute was quite high. In the instant case, the Applicant only pleads that they were not made aware of the suit which as has been found above is incorrect. From the conduct of the Applicant discernable from the record and pleadings, it would seem that the Applicant is seeking to obstruct or delay the course of justice. 6. The judgement entered on 26th June 2025 is thus regular. 7. Moreover, this court has perused the draft defense filed and finds that it does not raise any triable issues rather pleads generalities, 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). 8. 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. As explained earlier on in this Ruling, the Applicant has not satisfied the threshold for setting aside default judgment. 9. Ultimately, the court hereby orders as follows: a) The Notice of Motion Application dated 26th February 2026 is dismissed with no orders as to costs. b) Stay of execution issued on 26th February 2026 is hereby lifted. c) The Respondent/Decree Holder is at liberty to proceed and execute. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE 8TH DAY OF APRIL 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; …N/A… for Claimant; …Ms Musuko h/b for Tsofwa… for Respondent C/A Jesca https://new.kenyalaw.org/akn/ke/judgment/scc/2026/110/eng@2026-04-08 2
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