By a plaint dated 24 th January 2023, the plaintiffs sued the defendant claiming Kshs 21,494,627.90 being sum of money the plaintiffs invested in a joint venture with the defendant. The plaintiffs also prayed for Kshs 9,000,000.00 being their share of the profits from the investment.
The defendant did not enter appearance or file defence but filed a preliminary objection dated 29 th July 2023 claiming that it was not served with summons and that there was no entity by the name Tunasco Insaat Anonim Sirket Limited. By ruling dated 13 th March 2024, the Honourable Justice F. Mugambi held that the preliminary objection was successful to the extent that the defendant had not been served but declined to strike out the suit and gave the defendant 15 days to file its statement of defence.
The plaintiff followed the above ruling with an application for review dated 2 nd April 2024 which the Honourable Judge heard and by ruling dated 15 th May 2024 allowed and consequently entered interlocutory judgment in default against the defendant. Since that time, the defendant has not entered appearance in the proceedings despite service.
The matter proceeded to formal proof on 4-12-2024 where only the 1 st plaintiff testified. He told the court that the defendant approached him and the 2 nd plaintiff to invest in a contract which had been awarded to the defendant for upgrading to bitumen standard and maintenance of Muvakari-Kanyuambora-Kageru road. The defendant wanted them to finance a performance bond in form of an insurance to the tune of Kshs 21,494,627.90. The plaintiffs and the defendant proceeded to execute an agreement dated 1-10-2021 which provided for the said financing and further that the plaintiffs were to be paid a sum of Kshs 9,000,000.00 as their share of the profits from the said investment. He added that they were to be paid their said entitlement within sixty days which they never received despite their demands.
I have gone through the records of this file and note that the claim was a purely liquidated one. There was no prayer for any other relief except interest and costs. The matter found its way to formal proof on account of ruling of Honourable Justice F. Mugambi dated 15-05-2024 where she entered interlocutory judgement against the defendant in default of defence and fixed the matter for formal proof on 19-09-2024. In my view, this matter falls under Order 10 Rule 4(1) of the Civil Procedure Rule which provides 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 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.’
In view the nature of the claim, it did not need to go for formal proof as there was no other relief which required proof. I am persuaded by holding in of Honourable Justice G.V. Odunga as he then was in Nancy Musili v Joyce Mbete Katisi (2019) eKLR in which Judge held as follows;
‘In this case what was claimed was a mere debt arising from money alleged to have been advanced. It was a specific sum of money which did not require any further step to be taken in order to ascertain the sum due. In my view what was before the trial court was a liquidated demand and final judgment could be entered in default of appearance. In fact, in that even the entry of interlocutory judgment would have been erroneous. That was the position in Coach Safaris Ltd vs Gusii Deluxe Ltd. civil appeal number 117 of1996 where the Court of Appeal held that formal proof is unnecessary in liquidated claims where ex-parte judgment has been entered and the formal proof, if carried out, is a nullity.’
In it was also held that Shailesh Patel t/a Energy Company of Africa v Kassels Engineering Works Pvt Limited & 2 others (2014) KEHC 3551 (KLR) that;
‘In fact, the Plaintiff’s claim arrived in court already liquidated. In the absence of a defence to it, there needed not be any further judicial process to validate it.’
I see no need of this court going into analysis of the evidence of the liquidated claim which was not defended and I hereby make the interlocutory judgement entered on 15-05-2024 final. Judgement is therefore entered for the plaintiff against the defendant as follows;
Kshs 30,494,627.90.
Interest on the above sum at court rates from the date of filing this suit until payment in full.
Costs of this suit.
Dated signed and delivered at Nairobi this 4 th day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Judgment delivered in presence of Mr. Mohammed for the plaintiff and in absence of the defendant.
The defendant did not enter appearance or file defence but filed a preliminary objection dated 29 th July 2023 claiming that it was not served with summons and that there was no entity by the name Tunasco Insaat Anonim Sirket Limited. By ruling dated 13 th March 2024, the Honourable Justice F. Mugambi held that the preliminary objection was successful to the extent that the defendant had not been served but declined to strike out the suit and gave the defendant 15 days to file its statement of defence.
The plaintiff followed the above ruling with an application for review dated 2 nd April 2024 which the Honourable Judge heard and by ruling dated 15 th May 2024 allowed and consequently entered interlocutory judgment in default against the defendant. Since that time, the defendant has not entered appearance in the proceedings despite service.
The matter proceeded to formal proof on 4-12-2024 where only the 1 st plaintiff testified. He told the court that the defendant approached him and the 2 nd plaintiff to invest in a contract which had been awarded to the defendant for upgrading to bitumen standard and maintenance of Muvakari-Kanyuambora-Kageru road. The defendant wanted them to finance a performance bond in form of an insurance to the tune of Kshs 21,494,627.90. The plaintiffs and the defendant proceeded to execute an agreement dated 1-10-2021 which provided for the said financing and further that the plaintiffs were to be paid a sum of Kshs 9,000,000.00 as their share of the profits from the said investment. He added that they were to be paid their said entitlement within sixty days which they never received despite their demands.
I have gone through the records of this file and note that the claim was a purely liquidated one. There was no prayer for any other relief except interest and costs. The matter found its way to formal proof on account of ruling of Honourable Justice F. Mugambi dated 15-05-2024 where she entered interlocutory judgement against the defendant in default of defence and fixed the matter for formal proof on 19-09-2024. In my view, this matter falls under Order 10 Rule 4(1) of the Civil Procedure Rule which provides 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 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.’
In view the nature of the claim, it did not need to go for formal proof as there was no other relief which required proof. I am persuaded by holding in of Honourable Justice G.V. Odunga as he then was in Nancy Musili v Joyce Mbete Katisi (2019) eKLR in which Judge held as follows;
‘In this case what was claimed was a mere debt arising from money alleged to have been advanced. It was a specific sum of money which did not require any further step to be taken in order to ascertain the sum due. In my view what was before the trial court was a liquidated demand and final judgment could be entered in default of appearance. In fact, in that even the entry of interlocutory judgment would have been erroneous. That was the position in Coach Safaris Ltd vs Gusii Deluxe Ltd. civil appeal number 117 of1996 where the Court of Appeal held that formal proof is unnecessary in liquidated claims where ex-parte judgment has been entered and the formal proof, if carried out, is a nullity.’
In it was also held that Shailesh Patel t/a Energy Company of Africa v Kassels Engineering Works Pvt Limited & 2 others (2014) KEHC 3551 (KLR) that;
‘In fact, the Plaintiff’s claim arrived in court already liquidated. In the absence of a defence to it, there needed not be any further judicial process to validate it.’
I see no need of this court going into analysis of the evidence of the liquidated claim which was not defended and I hereby make the interlocutory judgement entered on 15-05-2024 final. Judgement is therefore entered for the plaintiff against the defendant as follows;
Kshs 30,494,627.90.
Interest on the above sum at court rates from the date of filing this suit until payment in full.
Costs of this suit.
Dated signed and delivered at Nairobi this 4 th day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Judgment delivered in presence of Mr. Mohammed for the plaintiff and in absence of the defendant.