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1. Background summary:

The Kenya Power & Lighting Company (the appellant) filed an application in the subordinate court in Kwale Principal Magistrate’s Court in PMCC No. E042 of 2023 seeking to set aside interlocutory judgment entered against it. On the 6th of November, 2024, the subordinate court dismissed the application and being aggrieved by the decision of the subordinate court. One of the reasons the subordinate court had dismissed the appellant’s application to set aside a default judgment entered against it for failing to file a defense. The default judgment awarded Hamisi Ngalaa Ngedzo (the respondent) Kes.4,003,108/= in damages for injuries sustained due to electrocution from fallen high-voltage wires. The High Court on hearing the appeal, set aside interlocutory judgment. The successful advocate for the appellant was Okello Kinyanjui and Company LLP.

2. Analysis and determination:

The appellant’s arguments before the High Court can be summarized as follows:-

• Improper Service: The appellant claimed it was not served with court documents, rendering the default judgment irregular.

• Time-Barred Suit: The respondent allegedly filed the suit outside the limitation period without leave.

• Triable Issues: The appellant presented a draft defense raising issues of contributory negligence and limitation.

• Delay in Applying to Set Aside: The appellant argued it acted promptly upon learning of the judgment.

The respondent’s arguments before the High Court can be summarized as follows:-

• The suit was filed within time after obtaining leave.

• Proper service was effected both physically (via a process server) and electronically.

• The application to set aside was an afterthought intended to delay justice.

The court’s findings were as follows:-

• Service of Summons: The court found that the appellant was properly served, dismissing claims of forgery or irregularity.

• Default Judgment was Regular: Since service was proper, the judgment was not irregular.

• Exercise of Discretion to Set Aside:-

1. The trial magistrate failed to consider the appellant’s draft defense, which raised triable issues (e.g., limitation, contributory negligence).

1. Courts should prioritize substantive justice over procedural technicalities unless there is fraud or deliberate delay.

1. Both parties had agreed to deposit the decretal sum in a joint account, indicating willingness to litigate on merits.

Having found as it did the court decided as follows:-

• Appeal Allowed: The trial court’s ruling was set aside.

• Default Judgment Vacated: The appellant was granted leave to file a defense within 30 days.

• Stay of Execution: The earlier order for depositing the decretal sum, i.e., Kes.4,457,180/= in a joint account remained in force pending the suit’s determination.

• Costs: Appellant to pay Kes.20,000/= as throw-away costs to the respondent.

• Reassignment: The case was to be heard afresh by a different magistrate.

3. Our comments

The appeal succeeded because the trial court failed to properly evaluate the appellant’s defense, and justice demanded that the case be heard on its merits. The court also reiterated the following key legal principles, i.e.:-

• Setting Aside Default Judgments (Order 10 Rule 11, Civil Procedure Rules): Courts have wide discretion but must balance justice, prejudice, and triable issues.

• Right to Be Heard: A party should not be condemned unheard (natural justice).

• Limitation Defenses: Must be raised at trial, not as a preliminary objection.

• Substantive Justice Over Technicalities: Mistakes (even by counsel) should not deny a party a hearing unless there is bad faith.

The decision can be found here.