Anne Wanjiku Gathoni v Monica Mwikali Mwanzia [2019] KEELC 3739 (KLR)
The bottom line
#Kenya's High Court set aside an interlocutory judgment because the claim mixed liquidated damages with declarations and injunctions, meaning default judgment was never available.
What this practically means
#Executive summary
#Key legal issues
#Availability of interlocutory judgment for the plaintiff's claim
The plaint sought declaratory, injunctive and eviction reliefs and did not fit Order 10 rule 4(2); interlocutory judgment was not available and the entry of it was irregular.
The court examined Order 10 rules 4(2) and 4(6) of the Civil Procedure Rules, 2010. Rule 4(2) applies where a plaint makes a liquidated demand together with some other claim, and rule 4(6) requires formal proof for other claims. The plaint sought liquidated damages of Kshs 650,000 plus declaratory, injunctive and eviction orders, so the claim required formal proof. The court applied Meir vs Nairobi City Council and Mint Holdings Ltd vs Trust Bank Ltd, which held that interlocutory judgment was not available where the reliefs sought require formal proof.
Jurisdiction of the Deputy Registrar to enter interlocutory judgment
The Deputy Registrar had no jurisdiction to enter the interlocutory judgment against the defendant.
Since the claim was not one in which interlocutory judgment could be entered at all, the Deputy Registrar lacked jurisdiction to enter it. The court found that the plaintiff's application dated 9th May 2014 sought declaratory and injunctive reliefs, which required formal proof, and concluded that the judgment entered on 23rd September 2015 was irregular and a nullity that the court could set aside ex justitiae debito.
Discretion to set aside default judgment and the right to be heard
Under Order 10 Rule 11 the court has discretion to set aside a default judgment on such terms as are just, and Article 50(1) entitled the defendant to be heard; the draft defence and counterclaim raised triable issues.
The court invoked Order 10 Rule 11 of the Civil Procedure Rules and Article 50(1) of the Constitution guaranteeing the right to be heard. It noted the parties entered into a new sale agreement dated 17th January 2014 and that the defendant was in occupation of the suit property. Finding the draft defence and counterclaim to raise triable issues, the court exercised its discretion in favour of setting aside the irregular judgment so the defendant could prosecute her defence.
Legal principles established
#- Interlocutory judgment is only available where a plaint makes a liquidated demand only, or a liquidated demand together with some other claim; where the reliefs sought require formal proof, entry of interlocutory judgment is irregular.
Court orders
#- 1.The interlocutory judgment entered by the Deputy Registrar on 23rd September 2015 is set aside
- 2.The defendant is granted leave to file and serve the defence and counterclaim annexed to the application within twenty-one (21) days, with corresponding leave to the plaintiff to file and serve a reply to the defence and counterclaim if need be
- 3.Costs of the application to be borne by the defendant/applicant
- Jurisdiction invoked
- Sections 1, 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 10 Rule 11 of the Civil Procedure Rules, 2010; Article 50(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anne Wanjiku Gathoni v Monica Mwikali Mwanzia [2019] KEELC 3739 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 21st April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3739/eng@2019-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.