Default Judgement

This is judgement that is made in cases where the Defendant has not
entered appearance. Default judgement can either be final or
interlocutory. Final judgement can only be entered where the suit is
for a liquidated demand only. This is governed by Order 10 Rule 4, 5,
6 and 7 of the Civil Procedure Rules, 2010.
Where judgement entered in default of appearance, is interlocutory
in nature, it means that the same is not final and cannot be
executed. This is because the judgement does not settle all matters
in controversy and some of the issues must proceed to hearing.
Default Judgement as pointed above applies where the Defendant
has not entered appearance within the requisite period of time.
Where the Defendant fails to appear and a Plaintiff wishes to
proceed, the Plaintiff must file an Affidavit of Service in Court
evidencing the proof of service.
Where no appearance is entered, the suit is to be set down for
hearing without the necessity of notifying the defendant.
Where the defendant has appeared and not filed a defence, the
notice of “formal proof” or assessment of damages as the case may
be is to be served upon the defendant who has appeared.
Once the plaintiff sets the matter for hearing following the default of
appearance or defence, no appearance or defence is to be filed
unless with leave of the Court.
It is only in respect to the claims enumerated under Order10 Rule 4,
5, 6 and 7 of the CPR that a default judgement whether final or
interlocutory can be entered. In all other claims, the Plaintiff must
proceed under Order10 Rule 9 and set the matter down for hearing.
Under Order 10 Rule 4(1) where the claim is for liquidated demand
only and the Defendant fails to appear within the time specified in
the Summons to Enter Appearance, the Plaintiff shall make a request
for entry of Judgement against the Defendants. The request shall be
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in Form No. 13 of Appendix A. The Court will enter Judgement not
exceeding the sums specified in the request and make an order for
costs. This will be a final judgement because it settles the whole
claim.
Where, however, the claim is for liquidated demand and for some
other claim, default judgement can only be entered in respect of
the liquidated demand while other claims proceed to hearing.
(Interlocutory judgement). (See Order 10 Rule 4(2).
Under Order 10 Rule 4 (2) where the claim is partly pecuniary, the
Plaintiff must set down the suit for hearing for reason that the claim
does not fall within those specified under Order 10 Rule 4,5, 6 and 7
of the CPR.
Under Order 10 Rule 6, where the claim is for pecuniary damages
only or for the detention of goods with or without pecuniary
damages, the Court is only entitled to enter Interlocutory Judgement
and fix the matter for assessment of the quantum of damages or
value of goods (a procedure that is popularly known, erroneously
though as formal proof).
The request for the interlocutory or final judgement is to be made in
Form 13 of Appendix A.
Under Order 8 Rule 10, no judgement in default can be entered
against the Government without the leave of the Court.
Under Order 10 Rule 10, a defendant who seeks to set aside the
default judgement may apply to the Court and the Court may set
aside the default judgement or make any order as it deems fit in the
circumstances.
Judgement on Admission
Where a Defendant has been served with a Plaint and the
accompanying documents, the Defendant is required to file a
Statement of Defence. Where the Defendant files a Statement of
Defence either admitting the Plaintiff’s claim in part or fully, the

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Plaintiff may make an application before the Court to enter
Judgement on the issues admitted by the Defendant. This also
applies in cases of a Counterclaim. See Orders 12 Rule 3(2), 13 Rule 2
of the Civil Procedure Rules, 2010.
Where the admission is in respect to all the issues, the Court will
proceed to enter judgement. This judgement will be final because
then it settles all matters in controversy. However, where the
admission is in so far as it relates to part of the issues, judgement will
be entered in respect to those issue then the matter will be set down
for hearing in so far as the remaining issues are concerned.
Summary Judgement
This is provided for under Order 36 of the Civil Procedure Rules, 2010.
It is applicable where the Plaintiff makes a claim for liquidated
damage with or without interest, or recovery of land with or without
a claim for rent or mesne profits.
For a Plaintiff to qualify to apply for Summary Judgement, the
Defendant must have entered appearance but not filed a
Statement of Defence. This is the distinguishing factor between
Summary Judgement and Default Judgement. In the latter, the
Defendant has not entered appearance.
The application should be supported by a Supporting Affidavit of
either the Plaintiff or any other person authorized to swear the
Affidavit in his/her place.
Sufficient notice must be given to the defendant to respond to the
application. This notice ought not be less than seven (7) days.
Once served with the application, the defendant ought to file a
Replying Affidavit demonstrating to the Court why he/she should be
granted leave to defend the suit.
No application under Order 36 Rule 1 for Summary Judgement
should be brought against the government.

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Where the Court allows the application by the Defendant, the Court
will direct the Defendant to file the Statement of Defence within 14
(fourteen) days or any other time that the Court deems fit and
appropriate.
Where the Court finds that the Defendant in its Replying Affidavit has
admitted part of the claim, the Court will enter judgement on the
part of the claim admitted. The suit will then proceed for hearing in
respect to the claim that is not admitted.
In case where there are two defendants, the Court will look at each
defence separately. The Court will not dismiss the same but allow it
to proceed to full hearing. However, where a triable issue is not
found, the Court will proceed to dismiss the same. See Order 36 Rule
6 of the Civil Procedure Rules, 2010.
Where the Court grants the defendant leave to defend, the Court
may give the defendant unconditional leave or may give conditions
that it considers appropriate in the circumstances.
Where a Plaintiff files an application for the Court’s consideration
and yet the Plaintiff knew that the defendant ought to have been
given leave to defend, the Court will condemn the Plaintiff to pay
costs. See Order 36 Rule 8(2).
Consent Judgement
There are instances where parties to a suit agree to settle the matter.
In such a circumstance, the parties enter a consent order and file
the same before the Court for the Court to adopt it as an order of
the Court.
A consent judgement can either settle part or whole of the claim.
Where it settles part of the claim, the reminder will be listed for
hearing.
Once parties enter a consent judgement, the same cannot be set
aside unless upon circumstances in which a contract can be
repudiated. In the case of Flora N. Wasike -v- Destimo Wamboko

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[1988] eKLR, the Court of Appeal had this to say in setting aside
consent judgements: -
“Prima facie, any order made in the presence and with the
consent of counsel is binding on all parties to the proceedings
or action, and on those claiming under them ... and cannot be
varied or discharged unless obtained by fraud or collusion, or
by an agreement contrary to the policy of the court ...; or if the
consent was given without sufficient material facts, or in
general for a reason which would enable the court to set aside
an agreement.”
Thus, it is noteworthy that a Court of law will only set aside a consent
judgement if the above principles enunciated in the case of Flora N.
Wasike are met.
Judgement
This is governed under section 25 of the Civil Procedure Act and
Order 21 of the Civil Procedure Rules, 2010.
After hearing the case, the Judge shall pronounce the judgement in
open Court either at once or within 60 days from the conclusion of
the trial. A judgement should always be delivered in the presence of
all the parties.
A judgment should be dated and signed in open court at the time of
pronouncing the same. A judgment once signed shall not afterwards
be altered or added except as provided by section 99 CPA.
However, Courts can waive the requirements of Order 21 Rule 1
depending on the circumstances (Read the Practise directions
issued by the Chief Justice on 15th March, 2020 and 21st April, 2020)
as well as section 1B of the Civil Procedure Act, Article 159(2)(d) and
Article 48 of the Constitution.
A judge may pronounce a judgement written and signed by
another judge. A judgment pronounced by a judge other than the
judge by whom it was written shall be dated and countersigned by
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the judge pronouncing it in open Court at the time of
pronouncement.

Contents of a Civil Judgement

The judgement should contain the essential elements set out under
Order 21 Rule 4 of the Civil Procedure Rules. These include the
following: -
a) Should contain a concise statement of the case as well as a
summary of each party’s position.
b) The points for determination.
c) The decision thereon.
d) The reasons for such a decision.
e) Where issues are framed, the Court shall state its finding or
decision, with the reasons therefor, upon each separate issue.
f) The judgement is to be dated and signed.
Where the judgement delivered contains a prayer that would result
to some alteration to the title to land, a certified copy of the title
shall be produced to the Court before such judgment is delivered.
DECREE
A decree means the formal expression of an adjudication which so
far as regards the court expressing it conclusively determines the
rights of the parties regarding all or any of the matters in controversy
in the suit and may either be preliminary or final.
A decree is preliminary when further proceedings must be taken
before the suit can be completely disposed of and a final decree is
when such adjudication completely disposes of the suit.
Contents of a Decree.
Read Order 21 Rule 7 and 8 of the Civil Procedure Rules. These
include the following: -

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 a) The decree shall agree with the judgment.
b) It shall contain the number of the suit, the names and
descriptions of the parties.
c) Shall contain particulars of the claim and shall specify clearly
the reliefs granted or other determination of the suit.
d) The decree shall also state by whom or out of what property
or in what proportion the costs incurred in the suit should be
paid.
e) It shall bear the date upon which the decree is issued.
The amount of the costs payable may be stated in the decree if the
same has:
a) Been agreed upon by the parties.
b) Fixed by the judge or magistrate before whom the decree is
drawn.
c) Certified by the registrar under section 68A of the Advocates
(Remuneration) Order; or,
d) Taxed by the court.
In all other cases after the amount of costs has been taxed or
otherwise ascertained, it shall be stated in a Certificate of Taxation
signed by the taxing officer or a magistrate.
Preparation of a Decree
This is provided for under Order 21 Rule 8 of the Civil Procedure Rules,
2010. Any party in a suit in the High Court (and courts of equal status)
may prepare a draft decree and submit it for approval of the other
parties to the suit.
The other parties may approve the decree with or without
amendment or reject it and if the draft decree is approved by the
parties, it shall be submitted to the registrar whom upon confirmation
that the same is drawn up in accordance with the judgment shall
sign and seal the decree accordingly.
If no approval of or disagreement with the draft decree is not
received within seven (7) days of sending to the other parties, the
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registrar on receipt of notice in writing to that effect if satisfied that
the draft decree is drawn up in accordance with the judgment, shall
sign and seal the decree accordingly.
Where parties disagree on the contents of a draft decree, any party
may file the draft decree and mark the same as “For settlement”.
The registrar shall list the same in chambers before the judge who
heard the case or where the judge is not available before any other
judge.
Any order made before the subordinate court or the high court (and
courts of equal status) shall be drawn up, prepared, and signed in
the like manner as a decree.
An order means a formal expression of any decision of a Court which
is not a decree. An Order does not conclusively settle a matter.

An Oder issued by the High Court or the subordinate court, shall be

drawn up, prepared, and signed in the same manner as a decree.

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