Lumba v Board of Management of Mackinnon Road Girls High School aka Mackinnon Road High School (Commercial Case E174 of 2026) [2026] SCC 114 (KLR) (23 April 2026) (Ruling) Neutral citation: [2026] SCC 114 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MOMBASA COMMERCIAL CASE E174 OF 2026 TN MWANGEKA, RM APRIL 23, 2026 BETWEEN ANASTACIA ZAINA LUMBA ................................................................ APPLICANT AND THE BOARD OF MANAGEMENT OF MACKINNON ROAD GIRLS HIGH SCHOOL AKA MACKINNON ROAD HIGH SCHOOL ................ RESPONDENT RULING 1. This ruling relates to a Notice of Motion Application dated 25th March 2026 seeking to set aside judgment and decree issued on 12th March 2026 ostensibly for the reason that the default judgment entered against the Applicant was entered without leave of court. 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 Respondent, this court court finds that the Respondent herein dully notified the Applicant of the claim as per the annexed certificate of service dated 10th March 2026. The Respondent was aware of the date but did not turn up to court on the scheduled date and time either https://new.kenyalaw.org/akn/ke/judgment/scc/2026/114/eng@2026-04-23 1
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personally or through a representative. To this, the applicant states that their advocates were engaged in another matter, E040/2025 and has attached a copy of the said advocate’s diary. I note that the said extract does not contain SCCCOM E174 of 2026, the present suit, as one of the matters listed for 12th March 2026. This leads credence to the Respondent’s assertions that the Applicant had at the time not engaged an advocate. 4. The Applicant has however moved the court swiftly in filing for the setting aside of the judgement entered, as the application has been made 13 days post judgement. 5. I however do not agree with the Applicant that leave must be sought before default judgment can be entered against the Applicant. This is so as Rule 11(2) of the Small Claims Court Act Rules does not require it. 6. Be that as it may, 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). 7. Further, 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. 8. This court has perused the draft defense as well as the witness statement annexed in support of the application to set aside default judgment and finds that there are indeed triable issues as it is alleged that the amount due and owing to the Respondent is Kshs. 340,650/= and not Kshs. 549,550/= as there exists double billing for the same LPO by the Respondent. 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. No prejudice will be occasioned to the Respondent if this matter is heard and determined on merit. 9. Further in, Githegi v Kondala Limited-Nestle [2022] KEHC 12577 (KLR) the court held that the existence of triable issues is a precondition which must be meet in order to warrant setting aside of default judgment. I am satisfied that the Applicant possesses an arguable defense. 10. Ultimately, in consideration of all facts and circumstances both prior and subsequent and of the respective merits of the parties, the court hereby orders as follows: a. The Notice of Motion Application dated 25th March 2026 is allowed. b. Judgment entered on 12th March 2026 is hereby set aside together with all consequential orders. c. The Applicant/Respondent to file their response to the claim together with accompanying documents and serve the Claimant by 30th April 2026 in default the Claimant may move the court by applying for leave of the court to enter judgment against it. d. The suit shall be mentioned on 30th April 2026 for confirmation of compliance with these orders. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/114/eng@2026-04-23 2
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DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……23RD…. DAY OF……… APRIL… 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; ………N/A… for Claimant; …Ms. Ambetsa… for Respondent C/A Sabina https://new.kenyalaw.org/akn/ke/judgment/scc/2026/114/eng@2026-04-23 3
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