REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATES COURT AT NAKURU

CIVIL SUIT NO. E145 OF 2022
BETWEEN
JULIUS MULINGE…………..………………………….………….…….PLAINTIFF
VERSUS
JAMES KARIUKI.…...……………………………….…………….1ST
DEFENDANT
MOHAMMED YUNUS MALIK ………………………………….2ND
DEFENDANT
PLAINTIFF/RESPONDENT’S SUBMISSIONS

BRIEF FACTS.

May it please you your Honour,

These submissions relates to Applicant’s Notice of Motion dated 4th December, 2023
as well as the Supporting Affidavit of Mohammed Yunus Malik sworn on the 4th
December, 2023.

The said Application is vehemently opposed by the Plaintiff/Respondent’s by way of a

replying affidavit for reasons, among others, that the said application is a waste of
court’s valuable time and in any event spurious and unmeritous hence the same ought
to be struck out forthwith.

Your Honour, on the 17th February 2022, acting on the instructions of the
claimant/respondent herein, we filed a suit against the respondents/applicants for
compensation as a result of accident, material damage. We served the respondents in
person with the pleadings at Merica hotel along Kenyatta avenue but they failed
neither to enter appearance nor to file a defence.

Despite being served, the defendants failed neither to enter appearance nor to file a
defence. We requested for an interlocutory judgment which was endorsed. The
defendant/applicant is lying to the Honourable court that they were not aware of the
proceedings and that the same was not served upon them. The defendant/applicants
failed/ignored to file defence within the required time.

The applicant’s application is aimed at delaying the plaintiff/respondent herein from

enjoying the fruits of successful litigation. The summons to enter appearance, notice of
institution of suit together with all the accompanying pleadings were duly and/or
properly served upon the defendants/applicant herein as required by the law.

The suit was instituted and preceded with full knowledge of the defendants who
elected out of their own volition not to participate in the said process.

LEGAL ANALYSIS

The courts are guided by the provisions of Article 159(2)(d) of the Constitution and
Section 1A and 1B of the Civil Procedure Act in administering justice. The focus being

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on substantive justice, rather than procedural technicalities, and the just, efficient and
expeditious disposal of cases.

Order 10, of the Civil Procedure Rules, 2010, addresses the issue of consequences of
non-appearance, default of defence and failure to serve by a party. Order 10, rule 4
empowers Courts to enter interlocutory judgment in cases where the plaint is drawn
with a claim for pecuniary damages only or for detention of goods with or without a
claim for pecuniary damages.

On the other hand, rule 9 gives the Plaintiff the leeway to set down a suit for hearing
where no appearance is entered for other suits not provided for by this Order. Order
10, rule 10 provides that in cases where a defendant has failed to file a defence, rules 4
to 9 shall apply with any necessary modification.

Your Honour, courts ought to look at the draft defence to the plaint and accompanying
witness statements before proceeding to give its ruling as to whether the applicant’s
defence raises triable issues.

The plaintiff/respondent submits that the default judgment entered was regular and
the same can only be set aside in exercise of the court’s discretion and not as a matter
of right. In opposing the application, we’ve identified 4 principal grounds namely:
i. Whether the default judgment in this case was a regular judgment on a
liquidated claim;
There is no explanation for the failure to file a defence/ the defence was not
received in court
ii. No prejudice to the applicant
iii. Alternatively, and without prejudice the court to impose terms for setting
aside the regular default judgment.

i. Whether the default judgment in this case was a regular judgment on

a liquidated claim;

The default judgment of this court was regularly entered following service of the
summons to enter appearance in accordance with Order 5 rule 8 of the Civil Procedure
Rules. The judgment entered by the court was a judgment on a liquidated demand for
which the court was empowered to enter judgment in terms of Order 10 rule 4 (2) of
the Civil Procedure Rules.

The draft defence annexed to the application does not disclose any bonafide triable
issue. The application is a sham which is calculated to cause undue delay in the
settlement of a debt to irrevocable prejudice to the respondent who is entitled to the
fruits of its regular default judgment. In Abdalla Mohammed & Another v Mbaraka
Shoka (1990) eKLR the Court of Appeal held as follows: -“The tests for the correct
approach in an application to set aside a default judgment are; firstly, whether there
was a defence on merits; secondly whether there would be any prejudice; and thirdly,
what is the explanation for any delay”

In Iseme Kamau & Another v Kenya Airports Authority (2019) eKLR the court
held as follows; -

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“Similarly, I find no valid grounds have been advanced to warrant the setting aside of
the regular default judgment entered in this case in view of the clear admission by the
defendant/respondent of the amount of 36 million inclusive of VAT”

ii. No prejudice to the applicant

On the second ground, we submit that there will be no prejudice occasioned to the
applicant if the regular default judgment is not set aside in view of the clear
admissions that would be tantamount to assisting the applicant to obstruct or delay the
course of justice in this matter.

There was no plausible and candid reason given as to why the memo of appearance
and defence was not filed within the timelines since the applicant was served with
summons as per the affidavit of service.

Lastly in the alternative and on a without prejudice basis, if the court is inclined to set
aside the regular default judgment then it ought to do so on terms that the entire
decretal sum be deposited in court or alternatively the defendant to furnish a bank
guarantee for the said decretal sum. It would be unjust to set aside the regular default
judgment unconditionally in view of the clear admissions.

The power to set aside exparte judgment entered in default is discretionary. The
principles upon which such discretion is to be exercise were set out by the Court of
Appeal in Philip Kiptoo Chemwolo & Mumias Sugar Co. Ltd Vs Augustine
Kubende (1982-1988) KAR 1036 where it was held inter alia, citing with approval
the English case of Evans V Bartam [1993] AC 473: -

“The discretion is in terms unconditional. The courts however have laid down for
themselves rules to guide them in the normal exercise of their discretion. One is that
where the judgment was obtained regularly, there must be an affidavit of merits,
meaning that the applicant must produce to the court evidence that he has prima facie
defence.

The reason, if any, for allowing judgment and thereafter applying to set it aside is one
of the matters to much the court will have regard, in exercise of its discretion. The
principle is that witness and until the court has pronounced a judgment upon the
merits or by consent, it is to have the power to revoke the expression of the coercive
power where that has only been obtained by a failure to follow any of the rules of
procedure.”

In Shah v Mbogo & another [1967] E.A. It was held that:

“The court’s discretion to set aside an exparte judgment is intended to be exercised to

avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake
or error, but not to assist a person who has deliberately sought (whether by evasion or
otherwise to obstruct or delay the cause of justice, the motion should therefore be
refused.

Who is to bear the costs of this Application?

Costs are also awarded to compensate the successful party for the trouble taken in
prosecuting or defending the suit as in Justice Kuloba’s Judicial Hints on Civil
Procedure,

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“the object of ordering a party to pay costs is to reimburse the successful party for
amounts expended on the case. It must not be made merely as a penal measure…Costs
are a means by which a successful litigant is recouped for expenses to which he has
been put in fighting an action.”

It is our considered submissions that the plaintiff/respondent herein is entitled to the

costs of this suit if he has succeeded in the main purpose of this application, proven his
case on a balance of probability and obtained the precise form of relief he wanted.

CONCLUSION
Finally, your Honour, the orders sought by the Applicant via the instant application are
discretionary in nature and as such, the Applicant must make convincing submissions
that satisfy the court that it is indeed deserving of the court’s precious discretion.

The claimant/respondent maintains that the defendants were served and the process
was justified. The said Application is indeed aimed at delaying the claimant/respondent
from enjoying the fruits of successful litigation, lacks merit and ought to be dismissed
with costs to the defendant/Respondent.

The RESPONDENT relies on the cases;

1. Iseme Kamau & Another v Kenya Airports Authority (2019) eKLR

2. Job Kilach v Nation Media Group Limited & Others (2015) eKLR.

We so humbly submit.

Dated at NAKURU this ……………………..day of …………………………..2025

M/S. M.KORONGO & CO.

ADVOCATES FOR THE PLAINTIFF/RESPONDENT
DRAWN & FILED BY: TO BE SERVED
UPON;-
M. Korongo & Co. Kean Advocates LLP,
Advocates, Sansora Building, 2nd Floor,
Room 1,
Salman Centre, 3rdFloor, Government road ,
Kijabe Row, P.O Box 795-20100,

P.O Box 18898-20100, NAKURU

NAKURU Email:
[email protected]
Email: [email protected]

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