Njoroge v Prestige Air Services Ltd
The bottom line
#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
#Executive summary
#Key legal issues
#Exercise of discretion to set aside default judgment
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
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.
Effect of failure to cite the enabling provisions in the chamber summons
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
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.
Formal proof required where general damages are claimed despite default
Even where a defendant fails to file a defence, a claim for general damages requires formal proof before a final decree can be entered
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.
Legal principles established
#- 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
#- 1.The interlocutory judgment is set aside
- 2.The defence to be filed within 12 days from the date of the ruling
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.