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High CourtAllowedCivil Case No 204 of 1990

Njoroge v Prestige Air Services Ltd

High Court of Kenya
15 August 1991
1,399 words in judgment
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The bottom line

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Kenya's High Court set aside a default judgment, ruling that a lawyer's mistake shouldn't cost a client their day in court, provided they pay costs.

What this practically means

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Executive summary

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In this High Court ruling at Mombasa, Wambilyangah J dealt with the defendant's application to set aside an interlocutory judgment entered against it in default of defence in a suit by the plaintiff claiming general damages for alleged wrongful summary dismissal from employment. The defendant had entered appearance through its first advocate but never filed a defence; that advocate later withdrew citing lack of adequate instructions, and new counsel applied to set aside the judgment so a defence could be filed. The judge noted that the chamber summons omitted the enabling provisions (order IXA rules 10 and 11 of the Civil Procedure Rules), a substantial defect he cured by invoking the inherent powers under section 3A of the Civil Procedure Act. Reviewing the classic East African authorities - Patel v EA Cargo Handling Services, Shah v Mbogo, Sebei District Administration v Gasyali, Mwangi v Mugiria and Samson K Chumo v Kipkera Koech - he held that the discretion to set aside default judgment is wide and exists to relieve parties from accident, inadvertence and excusable mistake, and that mistakes of advocates should not be visited on their clients. The defendant's advocate had failed to alert the client of the consequences of delay, an arguable defence existed, and the plaintiff had not formally proved the general damages claimed. The interlocutory judgment was set aside, the defence was to be filed within 12 days, and the defendant was ordered to pay the plaintiff's costs of the application and of obtaining the interlocutory judgment.

Key legal issues

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01

Exercise of discretion to set aside default judgment

Holding

The discretion is free and wide, to be exercised judicially to avoid injustice from accident, inadvertence or excusable mistake, and was properly exercised here in favour of the defendant

Reasoning

Drawing on Patel, Shah v Mbogo and Sebei District Administration, the court held the discretion exists to relieve parties from excusable mistake. The defendant's advocate failed to alert the client of the deadline and of the interlocutory judgment for about six months. An arguable defence existed and the plaintiff had not formally proved general damages, so justice required setting aside the judgment on terms as to costs.

p. 3
02

Effect of failure to cite the enabling provisions in the chamber summons

Holding

The omission of order IXA rules 10 and 11 from the chamber summons was a substantial defect but curable under the court's inherent jurisdiction under section 3A of the Civil Procedure Act

Reasoning

The application concerned judicial discretion under order IXA rules 10 and 11 even though those provisions were not shown in the chamber summons. The judge treated this as a substantial defect remediable only by invoking the inherent powers under section 3A, and was prepared to do so, allowing the application to proceed on its merits.

p. 2
03

Formal proof required where general damages are claimed despite default

Holding

Even where a defendant fails to file a defence, a claim for general damages requires formal proof before a final decree can be entered

Reasoning

The plaintiff claimed general damages for alleged wrongful summary dismissal. The court reasoned that default in filing a defence does not dispense with formal proof of unquantified general damages under order IXA rule 5; interlocutory judgment could not yield a final decree without such proof, which also weighed in favour of setting the judgment aside.

p. 2

Legal principles established

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  • Mistakes of advocates should not be visited on their clients when the court considers setting aside default judgment
  • The discretion to set aside default judgment is wide; the main concern is to do justice and the court will not fetter its own discretion

Court orders

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  1. 1.The interlocutory judgment is set aside
  2. 2.The defence to be filed within 12 days from the date of the ruling
  3. 3.The defendant to pay the plaintiff's costs of the application and the plaintiff's costs incurred in obtaining the interlocutory judgment
Jurisdiction invoked
Order IXA rules 10 and 11 of the Civil Procedure Rules, saved by section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njoroge v Prestige Air Services Ltd", Case Analysis (1991). Civil Case No 204 of 1990. Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.