James Ngara Mukiri& another v Josephine Wangari Mukiri [2013] KEELC 152 (KLR)

The plaint claimed division and registration of land, not a liquidated debt, pecuniary damages, or detention of goods. Interlocutory judgment under Order 10 Rules 4-7 is only available for such claims. Since the claim fell outside those rules, Rules 9 and 10 applied, permitting the plaintiff to set the suit down for hearing where a defendant has appeared but not filed a defence. The Deputy Registrar's endorsement merely invoked Order 10 Rule 9 and directed the suit to formal proof, hence no judgment existed.

The court was satisfied the defendant may not have expressly instructed Sijeny & Co. Advocates, since she simultaneously instructed another firm whose appearance was filed before any request for judgment. The overriding objective under sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution favours substantial justice over technicalities. No injustice would be occasioned to the plaintiffs, who would have an opportunity to respond, and denying the defendant a hearing would amount to denial of access to justice.

Order 36 applies to summary judgment applications while Order 22 deals with execution of orders and decrees, neither of which was apt. However, Order 51 Rule 10 provides that no objection shall be made and no application refused merely by reason of failure to state the correct provision. The court therefore entertained the application on its substantive merits, guided by sections 1A and 1B of the Civil Procedure Act.