CONSEQUENCES OF NON-

APPEARANCE
LECTURE 11A: DEFAULT OF DEFENCE AND FAILURE TO SERVE
Where no appearance has been entered for a
minor or a person of unsound mind, before
proceeding further the plaintiff shall make an
application to the court for an order for a guardian
for the defendant to appear and defend the suit
(O10,r1)
Where the defendant fails to appear, the plaintiff
shall file an affidavit of service of summons (O10,r2)
• If the claim is for a liquidated amount and the defendant fails to
make an appearance by the date fixed by the summons a request
shall be made to the court by a Request for Judgment as per
Form no. 13 Appendix A
• The court shall enter judgment for a sum not exceeding the
liquidated sum claimed, together with interest from the date filed
to the date of judgment and costs , at reasonable rate as per the
court (O10,r4(1))
• Where the claim is for liquidated sum and other claim, the
awarding of costs shall be determined after the other claim has
been settled (O10, r4(2))
• Where the plaint makes a liquidated demand with any other claim
and there are several defendants, some of whom fail to appear as
required ,the court shall, on request as per Form 13 of Appendix A,
enter judgment against any defendant failing to appear as
according to (O10, r4)
• Execution may ensue upon such judgment and decree, against
those failing to appear
• Notwithstanding the above, the plaintiff may still proceed with their
action against those who have appeared (O10, r5)
• Where the plaint filed for pecuniary damages or for detention
of goods with or without damages and the defendant fails to
appear, upon an application by the plaintiff for a request for
judgment the court may enter an interlocutory judgment
against defendant
• In the Request for Judgment the plaintiff will delete the
component for request for costs
• Plaintiff shall then set down the suit for assessment of the
damages or value of goods and damages (O10, r6)
• Where the plaint is for pecuniary damages or for detention
of goods with or without damages and there are several
defendants, and some appear and some fail to appear, the
court shall upon request in Form 13 Appendix A, enter
interlocutory judgment upon those failing to appear
• Damages or value of goods and damages shall be assessed
at the time of the hearing of those defendants who have
appeared (O10, r7)
 Liquidated/Unliquidated Demand
• A liquidated demand must be capable of calculation.
• A liquidated demand is a claim for a specific sum of money.
• If the demand is for any amount which has not already been
calculated but is merely a matter of arithmetic, the demand is also a
liquidated demand.
• A claim for unliquidated damage is not a liquidated demand
because the quantum of the claim requires judicial assessment
beyond arithmetic calculation.
 PROCEDURE
• Requests for ex-parte judgments are made where memorandum to
enter appearance and defense have not been filed within the
prescribed time.
• File is retrieved, court fees paid and file marked to deputy registrar
for perusal and directions.
• Final or interlocutory judgment is entered by the deputy registrar
depending on the reliefs sought in the plaint.
• Matter is set down for formal proof hearing upon entry of
interlocutory judgment.
• A request for entry of judgment is accompanied by an affidavit
stating mode of service by the advocate’s court process server
annexing a copy of license to serve.
• Attempts to file memorandum of appearance as per Form No. 12
Appendix A, and or defense after directions to enter judgment or
entry of judgment are placed before the deputy registrar for
directions.
• All requests for judgment and entry of judgment shall be serialized.
• Where the defendant is the government, a formal application for
leave to enter judgment against the government must be made.
• No judgment in default of appearance or pleading may be entered
against the government without leave of the court
• Application for leave to be served not less than 7 days before its
return (O10, r8)
• Subject to O10 r4, the general rule for all other suits not specifically
provided for by O.10 is that the plaintiff may set down the matter for
hearing, where there is non-appearance by party served (O10, r9)
• The provisions set out in O10 r4-9 shall apply where any defendant
fails to file a defence (O10, r10)
• Where the defendant fails to serve the
memorandum of appearance or the defence within
the prescribed time the court may strike out such
memorandum of appearance or defence and make
any order it deems fit (O10, r3)
• However, the court may vary or set aside any
judgment, decree or order made under this order
upon just terms
 Setting aside Default Judgment
• Entering a judgment in default of appearance is essentially
an administrative process, the court does not investigate
the merits of the claim, and this could potentially cause
injustice.
• A default judgment may be set aside:
(1) Where it has been irregularly obtained; and
(2) Where the defendant shows that there are triable issues.
• Where the court sets aside a regularly obtained
judgment, it may impose terms, such as ordering the
defendant to pay money into court.
• Before setting aside the ex parte judgment, the court
has to be satisfied, not only that the defendant had
some reasonable excuse for failing to appear (file a
defence) but also that there is a merit in the defence
to the case.
 Delay
• A defendant who wishes to apply to set aside a
default judgment should act reasonably and
promptly.
• If there is delay in making the application he should
explain in his affidavit the reasons of such delay, and
the court in it’s discretion may reject the application
• Some of the reasons that have been accepted for delay are:
(a) A mistake by an advocate though negligent may be
accepted as a sufficient cause;
(b) Ignorance of procedure by an unrepresented defendant
may amount to sufficient cause; and
(c) Illness by a party may also constitute sufficient cause.
 However, failure to instruct an advocate is not sufficient
cause to justify delay.
• Nonetheless, the court still has discretion to set aside
judgment even though there has been delay so long as it
satisfies itself with regard that:
(a) No one has been prejudiced by the defendant’s tardiness;
or
(b) That such prejudice as has been sustained, can be cured
by an appropriate order for costs; or
(c) That to allow the judgment to stand would be
oppressive.
• A judgment that has been irregularly obtained
should generally be set aside as of right (ex debitio
justitiae) without terms.
 CASE • Court drew a distinction between
In the case of Southern Credit regular and irregular judgments and
Banking Corporation v. was of the view that where service of
Jonah Stephen Nganga, summons to enter appearance has
(2006) eKLR, the court
been served and judgment has been
referred to a ruling in the case
of HCCC no. 241 of 1998
entered, the said judgment is regular.
Fidelity Commercial Bank • Where service is not effected and
Limited v. Owen Amos judgment is entered then the
Ndungu & Another.
subsequent judgment is irregular.