INTERLOCUTORY JUDGEMENT
An interlocutory judgement is a judgement made before the trial is concluded. An interlocutory
judgement is entered in default of a defence or if the defendant fails to appear in court. It
purports to prevent inordinate delay in the course of obtaining justice.
Order 10 rule 4 sub-rule1provides that where the plaint makes a liquidated demand only and the
defendant fails to appear on or before the day fixed in the summons or all the defendants fail so
to appear, the court shall, on request, enter judgment against the defendant or defendants for any
sum not exceeding the liquidated demand together with interest thereon from the filing of the
suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs.
Order 10 rule 4 sub-rule 2 provide that where the plaint makes a liquidated demand together with
some other claim, and the defendant fails, or all the defendants fail, to appear as aforesaid, the
Court shall, on request, enter judgment for the liquidated demand and interest thereon as
provided by sub-rule (1) but the award of costs shall await judgment upon such other claim. Thus
if the claimant was seeking for a liquidated demand together with any other claim the court will
enter an interlocutory judgement for the liquidated damages and any interest that the court deems
to be reasonable. The other non-liquid claims will however be heard in trial.
Order 10 rule 5 provides that liquidated demand against several defendants where the plaint
makes a liquidated demand with or without some other claim, and there are several defendants of
whom one or more appear and any other fails to appear, the court shall, on request ,enter
judgment against any defendant failing to appear in accordance with rule 4, and execution may
issue upon such judgment and decree without prejudice to the plaintiff’s right to proceed with the
action against such as have appeared. Thus where the case involves several defendants and an
interlocutory judgement is entered against one of the defendants the plaintiff can still proceed
with the action against the other defendants.
Order 10 rule 6 provides that where the plaint is drawn with a claim for pecuniary damages only
or for detention of goods with or without a claim for pecuniary damages, and any defendant fails
to appear, the court shall, on request, enter interlocutory judgment against such defendant, and
the plaintiff shall set down the suit for assessment by the court of the damages or the value of the
goods and damages as the case may be.
Order 10 rule 7 provides that where the plaint is drawn as mentioned in rule 6 and there are
several defendants of whom one or more appear and any other fails to appear, the court shall, on
request, enter interlocutory judgment against the defendant failing to appear, and the damages or
the value of the goods and the damages, as the case may be, shall be assessed at the same time as
the hearing of the suit against the other defendants, unless the court otherwise orders. Thus the
plaintiff can still proceed with the action against the defendants even though an interlocutory
judgement has been entered against one of the defendants.
Order 10 rule 8 provides that no judgment in default of appearance or pleading may be entered
against the Government without the leave of the court and any application for leave shall be
served not less than seven days before the return day.
Setting aside an interlocutory judgement
Order 10 rule 11 provides that where judgment has been entered under this Order the court may
set aside or vary such judgment and any consequential decree or order upon such terms as are
just.
In WINNIE WAMBUI KIBINGE & 2 OTHERS V MATCH ELECTRICALS LIMITED
[2012] KEHC 274 (KLR) an interlocutory judgement was entered in the plaintiffs’ favor in the
sum of Kshs. 16,276,976/- being the liquidated sum in form of pleaded special damages and loss
of family income provable by way of receipts and documentation. The defendant sough for the
interlocutory judgement to be set aside arguing that the reason why the defence was filed 30 days
out of time was due to the advocate’s failure to carry out his instructions. The court held that the
defendant’s argument was reasonable and set aside the interlocutory judgement. The court also
ordered that the plaintiff was to be issued throwaway costs of Kshs 15.000.
The court stated that:-
“That the decision whether or not to set aside ex parte judgement is discretionary is not in doubt.
The discretion is, however, intended so to be exercised to avoid injustice and hardship resulting
from accident, inadvertence or excusable mistake or error, but is not designed to assist a person
who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of
justice.”
The court also stated that;-
“…a regular judgement would not usually be set aside unless the court is satisfied that there is a
defence on the merits, namely a prima facie defence which should go to trial or adjudication”
Thus the court will not set aside a regular interlocutory judgement unless it is satisfied that the
defendant has a strong defence against the claims by the plaintiff.
The court in WINNIE WAMBUI KIBINGE & 2 OTHERS V MATCH ELECTRICALS
LIMITED [2012] KEHC 274 (KLR) quoted the case of Remco Limited vs. Mistry Jadva
Parbat & Co. Ltd. & 2 Others Nairobi (Milimani) HCCC No. 171 of 2001 [2002] 1 EA
233 which had set out the principles guiding setting aside ex parte judgements as follows:
(I). if there is no proper or any service of summons to enter appearance to the suit, the
resulting default judgement is an irregular one, which the Court must set aside ex debito
justitiae (as a matter of right) on the application by the defendant and such a Judgement is not
set-aside in the exercise of discretion but as a matter of judicial duty in order to uphold the
integrity of the judicial process itself.
(ii). if the default judgement is a regular one, the Court has an unfettered discretion to set aside
such judgement and any consequential decree or order upon such terms as are just as ordained by
Order 9A rule 10 [now Order 10 Rule 11] of the Civil Procedure Rules.
IN CMC Holdings Ltd v James Mumo Nzioki [2004] KECA 143 (KLR) the appellant sought for
the interlocutory judgement made against them. The appellant argued that even though it had
failed to appear at the hearing the court should not have entered into an interlocutory judgement
as it had a cogent defence. The court set aside the interlocutory judgement as the trial court had
failed to consider whether there was a reasonable defence by the appellant before issuing the
interlocutory judgement.
The Court stated that;-
“The law is now well settled that in an application for setting aside ex parte judgment, the Court
must consider not only reasons why the defence was not filed or for that matter why the
applicant failed to turn up for hearing on the hearing date but also whether the applicant has
reasonable defence which is usually referred as whether the defence if filed already or if a draft
defence is annexed to the application, raises triable issues. “
