R EPUBLIC OF KENYA
IN THE HIGH COURT AT MAKUENI
CIVIL CASE NO. E007 OF 2025
URBANAS MUSAU NDUNDA ………………………………. PLAINTIFF
VERSUS
CONNIFFE KELI MBINYA ………………………….…… DEFENDANT
RULING
1) By an application dated 21/10/2025 the plaintiff herein sought interlocutory judgment against the defendant, who having been duly served with the summons to enter appearance, plaint and verifying affidavit, failed to enter memorandum of appearance or file defence within the prescribed time.
2) The request is made under order 10 rule 6 of the Civil Procedure Rules.
3) The defendant filed a replying affidavit opposing the request. The Affidavit is sworn on 1/12/2025.
4) He depones that order 10 Rule 6 is not applicable as this is not a suit for pecuniary damages. That he entered appearance on 24/9/2025 and filed a defence on 22/10/2025. That he also filed a preliminary objection to the suit – he explains that the delay was as a result of a mis-understanding on his part – as an unrepresented litigant, of Order 7 Rule 1 of the Civil Procedure Rule – which he thought gave him 28 days within which to file his pleadings. That this is the explanation for his filing his preliminary objection, summons to enter appearance and defence in 28 days upon service. Further that the plaintiff will not suffer any prejudice of pleadings are deemed as filed in time and the suit proceeds to full hearing. He cites – Article 159(2) (d) and (e) of the Constitution & Sections 1A & 1B of Civil Procedure Act.
He depones that no prejudice will be suffered by the plaintiff if his pleadings are deemed as filed. That he has a defence that raises triable issues.
He has also filed a preliminary objection seeking that the suit be struck out for various reasons.
5) I have perused the record. Is the application merited?
6) The defendant was served on 10/9/2025 with a plaint where plaintiff seeks inter alia general damages for libel and defamation, & restraining orders against further defamatory actions by the defendant.
7) By his own admission the defendant did not file any responses until 22/10/2025.
8) On what should happen when the defendant fails to enter appearance, Order 10 Rule 6 states;
Where a plaint is drawn with a claim for pecuniary damages only or…. And any defendant fails to appear, the court shall on request in form 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…”
9) On when the defendant should file defence Order 7 Rule 1 states:-
Where a defendant has been served with summons to enter appearance he shall unless some other further order is made by the court, file his defence within 14 days after he has entered an appearance in the suit and serve it upon the plaintiff within 14 days from the date of filing the defence…
10) From the foregoing the issue is whether the request for interlocutory judgment should be allowed.
11) Order 6 Rule 1 provides that a defendant shall appear within the time prescribed in the summons to enter appearance. In this case the summons to enter appearance clearly stated that he was to enter appearance within 15 days of service and that in default the plaintiff could proceed with the case in his absence.
12) The defendant did not comply.
13) I have read the defendant’s explanation that he proceeded to read Order 7 Rule 1 and confused himself on the time frames. This court did direct him to seek legal advice as being unrepresented was not an excuse not to do what is required by law.
14) That said I have noted that he has filed a defence and a preliminary objection – The defence does not appear frivolous and appears to raise triable issues.
15) The period of time that passed from the time of service to the time of filing the defence is not inordinate.
16) Guided by Sections 1A & 1B of the Civil Procedure Act it is in my view that justice demands that the request for judgment be declined – and the defendants’ pleadings, be deemed as filed in time – This is because the plaintiff will not suffer any prejudice and each party will get to be heard and matter be determined on merit.
In the circumstances:-
1. The request for interlocutory judgment is declined.
2. The defendant’s memorandum of appearance, statement of defence are deemed as filed in time – so long as they are paid for.
3. The defendant’s memorandum of appearance, statement of defence and the notice of preliminary objection be served upon the plaintiff within 3 days, hereof.
17) The plaintiff will have leave to respond to the defence within 7 days of service.
18) Parties to comply with Order 11 thereafter.
19) In the meantime, the plaintiff be served with the notice of preliminary objection to file any response within 14 days of service.
20) Mention before Deputy Registrar on 4/3/2026 to confirm;
1. Close of pleadings
2. Response to preliminary objection
3. Date for case conference
Dated, signed and delivered virtually on 13 th February 2026
Mumbua T. Matheka
Judge
Court Assistant - Mwiwa /Daniel
Counsel for the Plaintiff-Mr. Babu
Defendant-in person
Ruling HCC E007 OF 2025 Page 1 of 5
IN THE HIGH COURT AT MAKUENI
CIVIL CASE NO. E007 OF 2025
URBANAS MUSAU NDUNDA ………………………………. PLAINTIFF
VERSUS
CONNIFFE KELI MBINYA ………………………….…… DEFENDANT
RULING
1) By an application dated 21/10/2025 the plaintiff herein sought interlocutory judgment against the defendant, who having been duly served with the summons to enter appearance, plaint and verifying affidavit, failed to enter memorandum of appearance or file defence within the prescribed time.
2) The request is made under order 10 rule 6 of the Civil Procedure Rules.
3) The defendant filed a replying affidavit opposing the request. The Affidavit is sworn on 1/12/2025.
4) He depones that order 10 Rule 6 is not applicable as this is not a suit for pecuniary damages. That he entered appearance on 24/9/2025 and filed a defence on 22/10/2025. That he also filed a preliminary objection to the suit – he explains that the delay was as a result of a mis-understanding on his part – as an unrepresented litigant, of Order 7 Rule 1 of the Civil Procedure Rule – which he thought gave him 28 days within which to file his pleadings. That this is the explanation for his filing his preliminary objection, summons to enter appearance and defence in 28 days upon service. Further that the plaintiff will not suffer any prejudice of pleadings are deemed as filed in time and the suit proceeds to full hearing. He cites – Article 159(2) (d) and (e) of the Constitution & Sections 1A & 1B of Civil Procedure Act.
He depones that no prejudice will be suffered by the plaintiff if his pleadings are deemed as filed. That he has a defence that raises triable issues.
He has also filed a preliminary objection seeking that the suit be struck out for various reasons.
5) I have perused the record. Is the application merited?
6) The defendant was served on 10/9/2025 with a plaint where plaintiff seeks inter alia general damages for libel and defamation, & restraining orders against further defamatory actions by the defendant.
7) By his own admission the defendant did not file any responses until 22/10/2025.
8) On what should happen when the defendant fails to enter appearance, Order 10 Rule 6 states;
Where a plaint is drawn with a claim for pecuniary damages only or…. And any defendant fails to appear, the court shall on request in form 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…”
9) On when the defendant should file defence Order 7 Rule 1 states:-
Where a defendant has been served with summons to enter appearance he shall unless some other further order is made by the court, file his defence within 14 days after he has entered an appearance in the suit and serve it upon the plaintiff within 14 days from the date of filing the defence…
10) From the foregoing the issue is whether the request for interlocutory judgment should be allowed.
11) Order 6 Rule 1 provides that a defendant shall appear within the time prescribed in the summons to enter appearance. In this case the summons to enter appearance clearly stated that he was to enter appearance within 15 days of service and that in default the plaintiff could proceed with the case in his absence.
12) The defendant did not comply.
13) I have read the defendant’s explanation that he proceeded to read Order 7 Rule 1 and confused himself on the time frames. This court did direct him to seek legal advice as being unrepresented was not an excuse not to do what is required by law.
14) That said I have noted that he has filed a defence and a preliminary objection – The defence does not appear frivolous and appears to raise triable issues.
15) The period of time that passed from the time of service to the time of filing the defence is not inordinate.
16) Guided by Sections 1A & 1B of the Civil Procedure Act it is in my view that justice demands that the request for judgment be declined – and the defendants’ pleadings, be deemed as filed in time – This is because the plaintiff will not suffer any prejudice and each party will get to be heard and matter be determined on merit.
In the circumstances:-
1. The request for interlocutory judgment is declined.
2. The defendant’s memorandum of appearance, statement of defence are deemed as filed in time – so long as they are paid for.
3. The defendant’s memorandum of appearance, statement of defence and the notice of preliminary objection be served upon the plaintiff within 3 days, hereof.
17) The plaintiff will have leave to respond to the defence within 7 days of service.
18) Parties to comply with Order 11 thereafter.
19) In the meantime, the plaintiff be served with the notice of preliminary objection to file any response within 14 days of service.
20) Mention before Deputy Registrar on 4/3/2026 to confirm;
1. Close of pleadings
2. Response to preliminary objection
3. Date for case conference
Dated, signed and delivered virtually on 13 th February 2026
Mumbua T. Matheka
Judge
Court Assistant - Mwiwa /Daniel
Counsel for the Plaintiff-Mr. Babu
Defendant-in person
Ruling HCC E007 OF 2025 Page 1 of 5