Nairobi — The Court of Appeal has dismissed an appeal by Tata Africa Holdings (Kenya) Limited seeking to overturn a High Court decision that set aside an ex parte judgment worth over Sh17.9 million and $32,960 against ACE Africa Limited.
The case stemmed from a commercial dispute in which Tata Africa sued ACE Africa for unpaid dues, seeking recovery of the amounts plus interest.
Despite ACE Africa entering appearance on time in 2018, it failed to file a defence within the stipulated 14 days. Consequently, Tata Africa obtained an interlocutory judgment by default on May 22, 2018.
However, the following day, ACE Africa moved swiftly to file an application to set aside the judgment, arguing that the delay in filing the defence was minimal and that its draft defence raised triable issues.
The High Court allowed the application, citing the short delay, the respondent’s prompt action, and the need for substantive justice.
Unhappy with the ruling, Tata Africa appealed, arguing that the trial judge misapplied the law, acted arbitrarily, and failed to assess “thrown away” costs incurred.
The company further contended that the draft defence did not raise any substantive issues.
But in a unanimous decision delivered on June 5, 2025, the Court of Appeal upheld the High Court’s ruling, finding no basis to interfere with the trial judge’s discretion.
The three-judge bench–comprising Justices John Mativo, Mumbi Gachoka, and George Odunga–cited long-established precedent that a court’s discretion to set aside an ex parte judgment must be exercised judiciously and only interfered with if misused.
“The respondent filed an application for setting aside the judgment just a day after it was entered and attached a draft defence that the trial court found to contain triable issues,” the judgment reads.
“The delay was minimal, and the trial judge considered all relevant factors in reaching his decision.”
The court concluded that the appeal lacked merit and dismissed it with costs to ACE Africa.
