1. Through the Memorandum of Appeal dated 26th February 2025, the Appellant appeals against the Ruling of Honourable Y. A. Shikanda, Senior Principal Magistrate.
2. The Appeal was based on the grounds that:
i. The Learned Magistrate erred in law and in fact by finding that there was an interlocutory judgment entered on the 23rd August 2023.
ii. The Learned Magistrate erred in law and in fact by awarding throw away costs in favour of the Respondent as against the Appellant of Kshs.6,000/=.
iii. The Learned Magistrate erred in law and in fact by finding that the Kshs.6,000/= throw away costs was applicable also to all files in the series being Makindu ELRC Suit No. E003 of 2023, E004 of 2023, E005 of 2023, E006 of 2023, E007 of 2023, E008 of 2023, E009 of 2023, E010 of 2023 and E011 of 2023.
3. The Appellant prayed that the Appeal be allowed with costs, the Ruling and Order given on the 17th February, 2025 in Makindu ELRC Suits No.E002 of 2023 be set aside and the lower court matters in Makindu ELRC Suits E002 of 2023, E003 of 2023, E004 of 2023, E005 of 2023, E006 of 2023, E007of 2023, E008 of 2023, E009 of 2023, E010 of 2023 and E011 of 2023 be allowed to proceed to full hearing.
4. The Appeal was disposed of by written submissions.
APPELLANT’S SUBMISSIONS
5. The Appellant’s Advocates Agnes & Mathews Law LLP Advocates filed written submissions dated 10th July 2025.
6. On the issue of whether there was a regular interlocutory/ default judgment entered on the 23rd August 2023, counsel submitted that the court proceedings for the 23rd August 2023 wrongly indicate that the firm of Agnes and Mathew filed a letter for request for judgment and consequently default judgment was entered against the Appellant on 23rd August 2023.
7. Counsel submitted that the firm of Agnes and Mathew has never been on record for the Respondent herein being the Claimant in the lower court suit, to warrant filing a request for entry of interlocutory judgment in favour of the Claimant in the lower court.
8. Counsel submitted that the Respondent being the Claimant in the lower court matter did not file an Affidavit of Service in proof of service of summons to the Appellant and did not file a request for entry of interlocutory judgment prior to the alleged entry of interlocutory judgment on the 23rd August 2023, to warrant entry of a regular interlocutory judgment.
9. Counsel relied on the case of Margaret & another v Matonye & another (suing on their behalf and on behalf of the Estate of Patrick Matonye Ilondanga- Deceased) (2023) KEHC 24088 (KLR) to submit that if an act is void, then it is in law a nullity. It is not only bad, but incurably bad. Judgment entered against the Appellant in the above case was irregular and must be set aside for reasons that service of expired summons was a nullity.
10. Counsel submitted that the Makindu CMELRC lower court suits being suit numbers 2 of 2023, 3 of 2023,4 of 2023 ,5 of 2023, 6 of 2023, 7 of 2023, 8 of 2023,9 of 2023, 10 of 2023 and 11 of 2023 were filed on the 21st July 2023 by the Claimant being Respondent herein.
11. Counsel submitted that the Appellant herein being the Respondent in the lower court matter filed a Memorandum of Appearance on the 11th July 2023 and Statements of Response, Witness Statements and List of Documents on the 25th October 2023.
12. Counsel submitted that as at 23rd August 2023 when the default judgment was stated to have been entered, the Appellant herein had already filed on the 11th July 2023, a memorandum of Appearance dated 10th July 2023.
13. Counsel relied on the case of Ngutu t/a Real Technology Widom v Mutungi (2023) KEHC 2191 (KLR) to submit that Order 11 rule 2 of the Civil Procedure Rules 2010 provides that where any defendant fails to appear and the plaintiff wishes to proceed against such defendant he shall file an affidavit of service of the summons, unless the summons has been served by a process server appointed by the Court.
14. Counsel submitted that the Respondent did not file any Affidavit of Service of Summons neither did the Respondent file a request for interlocutory judgment to warrant entry of a regular interlocutory judgment on the 23rd August 2023.
15. Counsel relied on the case of Pius v Wambulwa (Insolvency Petition 1 of 2021) (2023) KEHC 19398 (KLR) to submit that there is need for proof of service prior to entry of interlocutory judgment and there being no proof of service, the default judgement should be set aside.
16. Counsel submitted that the lower court suits proceeded in court to the extent that parties consented in court on the 5th August 2024 to having Makindu MCELRC Suit number 2 of 2023 being the test suit wherein the appeal arose be the test suit for Makindu MCELRC Suit numbers 3 of 2023, 4 of 2023, 5 of 2023, 6 of 2023, 7 of 2023, 8 of 2023, 9 of 2023. 10 of 2023 and 11 of 2023.
17. Counsel submitted that it is questionable that the issue concerning there being an interlocutory judgment arose on the 25th November 2024 and the 17th February 2025 during court mentions.
RESPONDENT’S SUBMISSIONS
18. The Respondent’s Advocates, B M Mung’ata & Company Advocates filed written submissions dated 2nd October, 2025.
19. On the issue of whether there was a regular interlocutory judgment entered against the Appellant, counsel relied on Order 7 Rule 1 of the Civil Procedure Act to submit that where a defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit of service.
20. Counsel submitted that the Appellant entered appearance on 11th July 2023 but did not file a defence until 25th October, 2023 which is beyond the timelines envisaged in Order 7 Rule 1.
21. Counsel submitted that the Appellant filed its statement of defence beyond time and the Respondent was justified in filing a request for Judgment and the court correct in endorsing the Request and entering interlocutory judgment.
22. Counsel submitted that the Appellant’s claim that it filed a Memorandum of Appearance on time does not hold water since the response/defence was filed out of the stipulated timelines.
23. Counsel relied on the case of Jane Nasimiyu Wasike v Samuel Kamau (2013) EKLR to submit that the Appellant having filed the defence out of time, the Respondent was justified in making a request for judgment after expiry of the stipulated time.
24. Counsel submitted that the Appellant claims that there was no service of summons and pleadings. However, this argument is untenable since the Appellant entered appearance well on time an indication that it was properly served. The summons and pleadings also bear a receipt stamp from the Appellant a clear indication that there was proper service.
25. On the issue of whether the learned magistrate erred in awarding thrown away costs of Kshs. 6,000/= to the Respondent, counsel relied on the case of Gakuha v Embakasi Ranching Company & 4 others (2024) KEELC 7208 (KLR) to submit that the award of costs by courts is to improve due diligence and efficiency in our legal system as a whole. The award of throw away costs is to cater for substantial indemnity costs to reflect time that was wasted.
26. Counsel relied on the case of Rayat Trading Co. Ltd v Bank of Baroda & Tetezi House Ltd (2018) EKLR to submit that the trial court exercised its discretion judiciously by setting aside the interlocutory judgment on condition of payment of thrown away costs.
27. Counsel submitted that Kshs 6,000/= was reasonable and sufficient in the circumstances. In addition, there being a series of files arising from the same cause of action, with similar facts, the trial magistrate was also justified in applying similar orders in the related files.
28. Counsel submitted that the Appellant’s appeal is without merit and ought to be dismissed with costs to the Respondent.
DETERMINATION
29. The court has considered the pleadings by both parties and the submissions by the parties and this being a first Appeal the court will proceed to reanalyze the evidence before me as was held in the case of Selle vs Associated Motor Boat Company Limited [1968] E.A 123 thus:-
An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities……..or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
30. In this case, the Ruling of the trial court was that the interlocutory judgment of 23/8/2023 was set aside with the Appellant being ordered to pay thrown away costs of Kshs 6,000/= in each file to the Respondents. The Appellant was aggrieved by this direction of paying the thrown away costs basically as well as how the judgment was entered. The Appellant fronted three grounds of appeal which could be condensed into one issue of whether the trial court erred by finding that there was interlocutory judgment and if the court was justified in setting the interlocutory judgment aside and ordering the Appellant to pay thrown away costs of Kshs 6,000/= in each file.
31. The Appellant maintained that the Respondent did not file any Affidavit of Service of Summons neither did the Respondent file a request for interlocutory judgment to warrant entry of a regular interlocutory judgment on the 23rd August 2023.
32. On the other hand, the Respondent’s general case was that the Appellant entered appearance on 11th July 2023 but did not file a defence until 25th October,2023 which is beyond the timelines envisaged in Order 7 Rule 1.
33. The court has perused the one paragraph ruling of the lower court. Therein, the learned magistrate noted that interlocutory judgement was entered against the Appellant on 23rd August 2023 and while setting aside the said judgement directed the Appellant to pay thrown away costs of Ksh. 6,000/= to the Respondent.
34. On the first limb of the issue of entry of interlocutory judgment this court is guided as follows. Entry of default judgement is provided for under Order 10 rules 4, 5, 6 and 7 of the Civil Procedure Rules. It is important to set out the full text of the said provisions for the proper understanding of their scope, extent of application and relevance. The said provisions are as follows:
“4. (1) 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 in Form No. 13 of Appendix A, 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.
(2) 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 in Form No. 13 of Appendix A, 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.
5. 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 in Form No. 13 of Appendix A, 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.
6. 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 in Form No. 13 of Appendix A, 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.
7. 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 in Form No. 13 of Appendix A, 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.”
35. In demystifying the above provisions of the law, Odunga J (as he then was) in Winnie Wambui Kibinge & 2 Others v Match Electricals Limited [2012] KEHC 274 (KLR) stated as follows:
From the foregoing it is clear that a final judgement can only be entered where the suit is for a liquidated demand only. Where, however, the claim is for a liquidated demand and some other claim, a default judgement can only be entered in respect of the liquidated demand while the other claims proceed to hearing. Where, on the other hand, the claim is for pecuniary damages only or for 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). It is only in respect of the foregoing claims that a default judgement whether final or interlocutory can be entered. In all other claims the plaintiff must proceed under rule 9 of Order 10 and set the matter for hearing.
36. It is not a disputed fact that the Appellant entered appearance on 11th July, 2023 and filed defence on 25th October, 2023. The Defence was thus not filed within the requisite 14 days of entering appearance.
37. The Respondent as Claimant did not furnish evidence of request for judgment with an affidavit detailing service. It cannot therefore, be said that the Respondent applied for interlocutory judgement.
38. As a result, this court finds no basis upon which the lower court granted an interlocutory judgement. There was equally no basis for the award of thrown away costs as there was no interlocutory or default judgement to be set aside.
39. In the circumstances, the Appeal is merited and is allowed as follows:-
(i) The Ruling and Order dated 17th February 2025 in Makindu ELRC Suit No. E002 OF 2023 is hereby set aside.
(ii) The lower court matters in Makindu ELRC Suit Nos E002 of 2023, E003 of 2023, E004 of 2023, E005 of 2023, E006 of 2023, E007 of 2023, E008 of 2023, E010 and E011 of 2023 shall proceed to logical conclusion.
(iii) Each party to bear own costs of the Appeal in the circumstances.
40. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
2. The Appeal was based on the grounds that:
i. The Learned Magistrate erred in law and in fact by finding that there was an interlocutory judgment entered on the 23rd August 2023.
ii. The Learned Magistrate erred in law and in fact by awarding throw away costs in favour of the Respondent as against the Appellant of Kshs.6,000/=.
iii. The Learned Magistrate erred in law and in fact by finding that the Kshs.6,000/= throw away costs was applicable also to all files in the series being Makindu ELRC Suit No. E003 of 2023, E004 of 2023, E005 of 2023, E006 of 2023, E007 of 2023, E008 of 2023, E009 of 2023, E010 of 2023 and E011 of 2023.
3. The Appellant prayed that the Appeal be allowed with costs, the Ruling and Order given on the 17th February, 2025 in Makindu ELRC Suits No.E002 of 2023 be set aside and the lower court matters in Makindu ELRC Suits E002 of 2023, E003 of 2023, E004 of 2023, E005 of 2023, E006 of 2023, E007of 2023, E008 of 2023, E009 of 2023, E010 of 2023 and E011 of 2023 be allowed to proceed to full hearing.
4. The Appeal was disposed of by written submissions.
APPELLANT’S SUBMISSIONS
5. The Appellant’s Advocates Agnes & Mathews Law LLP Advocates filed written submissions dated 10th July 2025.
6. On the issue of whether there was a regular interlocutory/ default judgment entered on the 23rd August 2023, counsel submitted that the court proceedings for the 23rd August 2023 wrongly indicate that the firm of Agnes and Mathew filed a letter for request for judgment and consequently default judgment was entered against the Appellant on 23rd August 2023.
7. Counsel submitted that the firm of Agnes and Mathew has never been on record for the Respondent herein being the Claimant in the lower court suit, to warrant filing a request for entry of interlocutory judgment in favour of the Claimant in the lower court.
8. Counsel submitted that the Respondent being the Claimant in the lower court matter did not file an Affidavit of Service in proof of service of summons to the Appellant and did not file a request for entry of interlocutory judgment prior to the alleged entry of interlocutory judgment on the 23rd August 2023, to warrant entry of a regular interlocutory judgment.
9. Counsel relied on the case of Margaret & another v Matonye & another (suing on their behalf and on behalf of the Estate of Patrick Matonye Ilondanga- Deceased) (2023) KEHC 24088 (KLR) to submit that if an act is void, then it is in law a nullity. It is not only bad, but incurably bad. Judgment entered against the Appellant in the above case was irregular and must be set aside for reasons that service of expired summons was a nullity.
10. Counsel submitted that the Makindu CMELRC lower court suits being suit numbers 2 of 2023, 3 of 2023,4 of 2023 ,5 of 2023, 6 of 2023, 7 of 2023, 8 of 2023,9 of 2023, 10 of 2023 and 11 of 2023 were filed on the 21st July 2023 by the Claimant being Respondent herein.
11. Counsel submitted that the Appellant herein being the Respondent in the lower court matter filed a Memorandum of Appearance on the 11th July 2023 and Statements of Response, Witness Statements and List of Documents on the 25th October 2023.
12. Counsel submitted that as at 23rd August 2023 when the default judgment was stated to have been entered, the Appellant herein had already filed on the 11th July 2023, a memorandum of Appearance dated 10th July 2023.
13. Counsel relied on the case of Ngutu t/a Real Technology Widom v Mutungi (2023) KEHC 2191 (KLR) to submit that Order 11 rule 2 of the Civil Procedure Rules 2010 provides that where any defendant fails to appear and the plaintiff wishes to proceed against such defendant he shall file an affidavit of service of the summons, unless the summons has been served by a process server appointed by the Court.
14. Counsel submitted that the Respondent did not file any Affidavit of Service of Summons neither did the Respondent file a request for interlocutory judgment to warrant entry of a regular interlocutory judgment on the 23rd August 2023.
15. Counsel relied on the case of Pius v Wambulwa (Insolvency Petition 1 of 2021) (2023) KEHC 19398 (KLR) to submit that there is need for proof of service prior to entry of interlocutory judgment and there being no proof of service, the default judgement should be set aside.
16. Counsel submitted that the lower court suits proceeded in court to the extent that parties consented in court on the 5th August 2024 to having Makindu MCELRC Suit number 2 of 2023 being the test suit wherein the appeal arose be the test suit for Makindu MCELRC Suit numbers 3 of 2023, 4 of 2023, 5 of 2023, 6 of 2023, 7 of 2023, 8 of 2023, 9 of 2023. 10 of 2023 and 11 of 2023.
17. Counsel submitted that it is questionable that the issue concerning there being an interlocutory judgment arose on the 25th November 2024 and the 17th February 2025 during court mentions.
RESPONDENT’S SUBMISSIONS
18. The Respondent’s Advocates, B M Mung’ata & Company Advocates filed written submissions dated 2nd October, 2025.
19. On the issue of whether there was a regular interlocutory judgment entered against the Appellant, counsel relied on Order 7 Rule 1 of the Civil Procedure Act to submit that where a defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit of service.
20. Counsel submitted that the Appellant entered appearance on 11th July 2023 but did not file a defence until 25th October, 2023 which is beyond the timelines envisaged in Order 7 Rule 1.
21. Counsel submitted that the Appellant filed its statement of defence beyond time and the Respondent was justified in filing a request for Judgment and the court correct in endorsing the Request and entering interlocutory judgment.
22. Counsel submitted that the Appellant’s claim that it filed a Memorandum of Appearance on time does not hold water since the response/defence was filed out of the stipulated timelines.
23. Counsel relied on the case of Jane Nasimiyu Wasike v Samuel Kamau (2013) EKLR to submit that the Appellant having filed the defence out of time, the Respondent was justified in making a request for judgment after expiry of the stipulated time.
24. Counsel submitted that the Appellant claims that there was no service of summons and pleadings. However, this argument is untenable since the Appellant entered appearance well on time an indication that it was properly served. The summons and pleadings also bear a receipt stamp from the Appellant a clear indication that there was proper service.
25. On the issue of whether the learned magistrate erred in awarding thrown away costs of Kshs. 6,000/= to the Respondent, counsel relied on the case of Gakuha v Embakasi Ranching Company & 4 others (2024) KEELC 7208 (KLR) to submit that the award of costs by courts is to improve due diligence and efficiency in our legal system as a whole. The award of throw away costs is to cater for substantial indemnity costs to reflect time that was wasted.
26. Counsel relied on the case of Rayat Trading Co. Ltd v Bank of Baroda & Tetezi House Ltd (2018) EKLR to submit that the trial court exercised its discretion judiciously by setting aside the interlocutory judgment on condition of payment of thrown away costs.
27. Counsel submitted that Kshs 6,000/= was reasonable and sufficient in the circumstances. In addition, there being a series of files arising from the same cause of action, with similar facts, the trial magistrate was also justified in applying similar orders in the related files.
28. Counsel submitted that the Appellant’s appeal is without merit and ought to be dismissed with costs to the Respondent.
DETERMINATION
29. The court has considered the pleadings by both parties and the submissions by the parties and this being a first Appeal the court will proceed to reanalyze the evidence before me as was held in the case of Selle vs Associated Motor Boat Company Limited [1968] E.A 123 thus:-
An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities……..or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
30. In this case, the Ruling of the trial court was that the interlocutory judgment of 23/8/2023 was set aside with the Appellant being ordered to pay thrown away costs of Kshs 6,000/= in each file to the Respondents. The Appellant was aggrieved by this direction of paying the thrown away costs basically as well as how the judgment was entered. The Appellant fronted three grounds of appeal which could be condensed into one issue of whether the trial court erred by finding that there was interlocutory judgment and if the court was justified in setting the interlocutory judgment aside and ordering the Appellant to pay thrown away costs of Kshs 6,000/= in each file.
31. The Appellant maintained that the Respondent did not file any Affidavit of Service of Summons neither did the Respondent file a request for interlocutory judgment to warrant entry of a regular interlocutory judgment on the 23rd August 2023.
32. On the other hand, the Respondent’s general case was that the Appellant entered appearance on 11th July 2023 but did not file a defence until 25th October,2023 which is beyond the timelines envisaged in Order 7 Rule 1.
33. The court has perused the one paragraph ruling of the lower court. Therein, the learned magistrate noted that interlocutory judgement was entered against the Appellant on 23rd August 2023 and while setting aside the said judgement directed the Appellant to pay thrown away costs of Ksh. 6,000/= to the Respondent.
34. On the first limb of the issue of entry of interlocutory judgment this court is guided as follows. Entry of default judgement is provided for under Order 10 rules 4, 5, 6 and 7 of the Civil Procedure Rules. It is important to set out the full text of the said provisions for the proper understanding of their scope, extent of application and relevance. The said provisions are as follows:
“4. (1) 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 in Form No. 13 of Appendix A, 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.
(2) 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 in Form No. 13 of Appendix A, 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.
5. 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 in Form No. 13 of Appendix A, 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.
6. 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 in Form No. 13 of Appendix A, 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.
7. 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 in Form No. 13 of Appendix A, 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.”
35. In demystifying the above provisions of the law, Odunga J (as he then was) in Winnie Wambui Kibinge & 2 Others v Match Electricals Limited [2012] KEHC 274 (KLR) stated as follows:
From the foregoing it is clear that a final judgement can only be entered where the suit is for a liquidated demand only. Where, however, the claim is for a liquidated demand and some other claim, a default judgement can only be entered in respect of the liquidated demand while the other claims proceed to hearing. Where, on the other hand, the claim is for pecuniary damages only or for 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). It is only in respect of the foregoing claims that a default judgement whether final or interlocutory can be entered. In all other claims the plaintiff must proceed under rule 9 of Order 10 and set the matter for hearing.
36. It is not a disputed fact that the Appellant entered appearance on 11th July, 2023 and filed defence on 25th October, 2023. The Defence was thus not filed within the requisite 14 days of entering appearance.
37. The Respondent as Claimant did not furnish evidence of request for judgment with an affidavit detailing service. It cannot therefore, be said that the Respondent applied for interlocutory judgement.
38. As a result, this court finds no basis upon which the lower court granted an interlocutory judgement. There was equally no basis for the award of thrown away costs as there was no interlocutory or default judgement to be set aside.
39. In the circumstances, the Appeal is merited and is allowed as follows:-
(i) The Ruling and Order dated 17th February 2025 in Makindu ELRC Suit No. E002 OF 2023 is hereby set aside.
(ii) The lower court matters in Makindu ELRC Suit Nos E002 of 2023, E003 of 2023, E004 of 2023, E005 of 2023, E006 of 2023, E007 of 2023, E008 of 2023, E010 and E011 of 2023 shall proceed to logical conclusion.
(iii) Each party to bear own costs of the Appeal in the circumstances.
40. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum