[2025] KEHC 435 (KLR)

Gukem Constructon Limited v Nairobi City County (Commercial Suit 044 of 2020) [2025] KEHC 435 (KLR) (Commercial and Tax) (16 January 2025) (Ruling)

Neutral citation: [2025] KEHC 435 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Commercial Suit 044 of 2020

A Mabeya, J

January 16, 2025

Between

Gukem Constructon Limited

Plaintiff

and

Nairobi City County

Defendant

Ruling

1. This is a ruling on the defendant's Notice of Motion dated 14/6/2021. The same was brought under Order 10, Rules 8 and 11, and Order 51 of the Civil Procedure Rules. The application seeks to stay the taxation of the bill of costs and to set aside the interlocutory judgment entered Hon. S. A. Opande on 21/1/2021 and any subsequent decisions.

2. The application is based on the grounds outlined in the affidavit sworn on 14/6/2021 by Erick Abwao, the acting County Solicitor. He states that the case was originally filed in the Milimani Chief Magistrate Court as Case No. 4383 of 2019. The Applicant was unaware of the case being transferred to the High Court because the Respondent did not provide any communication regarding the transfer. Additionally, the Applicant claims that leave of court was not sought before the interlocutory judgment was entered.

3. The application is opposed through a replying affidavit sworn by Mary Ngumbani Mutinda on 2/7/2021. She argues that the debt is admitted and prior to filing the suit, the Applicant had stated that arbitration was unnecessary. She further contends that the delay in filing the current application is inordinate and claims that the Defendant is using delay tactics to delay the Plaintiff’s lawful entitlement.

4. The parties canvassed the application through written submissions which I have considered. The main issue for consideration is whether the Court should set aside the interlocutory judgment for want of leave.

5. The Court has unfettered discretion to either allow or decline an application seeking to set aside an interlocutory judgment. See Shah v Mbogo (1967) EA 116. In that case, at page 123, the court held: -“This discretion is intended so to be exercised to avoid injustice or 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."

6. The Applicant argues that the Respondent failed to comply with the mandatory provisions of Order 10 Rule 8 of the Civil Procedure Rules, which requires that leave of court must be obtained before an interlocutory judgment can be entered against the government. This section explicitly provides that, in cases involving the government, an interlocutory judgment cannot be entered unless the court has granted prior leave. Therefore, the Applicant contends that any interlocutory judgment obtained without such leave should be set aside.

7. In considering whether to exercise the discretion to set aside an interlocutory judgment, the Court must assess whether there was a failure to comply with the procedural requirements, whether the failure was significant and whether it prejudiced the Applicant. The discretion to set aside such a judgment must be exercised judiciously, balancing the interests of justice, procedural fairness and the adherence to legal requirements.

8. In the present case, the Respondent did not serve the Applicant Defendant with an application seeking the entry of interlocutory judgment. The Applicant being a government, is subject to special procedural rules under the Government Proceedings Act. Specifically, Order 10 Rule 8 of the Civil Procedure Rules provides that leave of court must be obtained before an interlocutory judgment can be entered against the government.

9. This provision ensures that the government is given adequate notice and opportunity to respond before any such judgment is entered. The failure to adhere to this requirement is a serious procedural oversight, as it undermines the intended protection for the government in litigation. Therefore, the Respondent’s failure to comply with Order 10 Rule 8 is fatal and justifies the setting aside of the interlocutory judgment that was entered herein.

10. Order 10 Rule 8 reflects on the special protection afforded to the government in legal proceedings and the Respondent’s failure to comply with it renders interlocutory judgment against the government invalid.

11. Based on the law and in the absence of proof that the Respondents sought leave for entry interlocutory judgment, it is clear that the judgment that was entered against the Applicant was irregular and cannot stand.

12. Accordingly, the application dated 14/6/2021 is merited and is allowed with costs. The judgment and all consequent proceedings are hereby set aside.It is so ordered.

SIGNED AT NAIROBI THIS 16TH DAY OF JANUARY, 2025. A. MABEYA, FCI ARBJUDGEDATED AND DELIVERED AT NAIROBI THIS 27TH DAY OF JANUARY, 2025. F. GIKONYOJUDGE