EOW Associates Limited v Mandera County Government [2022] KEHC 10383 (KLR)

EOW Associates Limited v Mandera County Government (Civil Case E003 of 2021) [2022] KEHC 10383 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10383 (KLR)

Republic of Kenya

In the High Court at Garissa

Civil Case E003 of 2021

A Ali-Aroni, J

May 13, 2022

Between

EOW Associates Limited

Applicant

and

Mandera County Government

Respondent

Ruling

1. The plaintiff filed a Notice of Motion dated 10th August 2021 premised on the provisions of Order 10 Rule 8 and Order 51 Rule 1 of the Civil Procedure Rules seeking the following Orders;a.That leave be granted to the plaintiff to lodge an application for default judgment against the Defendant.b.That if prayer 1 is granted, default judgment be entered against the Defendant/Respondent for sum of Kshs. 12,666,292. 00/= thereon from July 2010 as prayed in the plaint.c.That the cost of the application and the entire suit be awarded to the plaintiff against the Defendant together with interest thereon.

2. The application was supported by the affidavit of Elisha Wandera, director of the plaintiff, who averred that on 2nd March 2015 the plaintiff entered into a consultancy service agreement with the defendant to do a feasibility study in regard to a leather tannery factory.The plaintiff executed the consultancy service and submitted its report of the proposed Mandera tannery factory on diverse dates in July 2017.

3. That the fees for the service provided was Kshs. 14,901,520. The defendant paid a sum of Kshs. 2,235,228 to the plaintiff on diverse dates. The Defendant has breached and continues to breach the terms of the consultancy service agreement by defaulting to pay the outstanding balance amount of Kshs. 12,666,292.

4. On 8th and 9th April 2021, the Defendant was duly served with the plaint and summons to enter appearance respectively but has failed to enter appearance to date. The plaintiff made an application to the court for the request of default judgment against the Defendant dated 7th May 2021.

Analysis and Determination 5. The main issue for determination in this application is whether leave be granted to the applicant to file for default judgment against Defendant and whether upon granting such leave judgment ought to be entered against the Defendant in this very application as prayed.

6. The guiding provisions of seeking leave for entry of default judgment against the government are found in Order 10 Rule 8 of the Civil Procedure Rules. The same provides as follows;Judgment in default against the Government [Order 10, rule 8. ] No judgment in default of appearance or pleading may be entered against the Government without the leave of the court and any application for leave shall be served not less than seven days before the return day.

7. In Attorney General & 4 others v Abraham Kithinji Ireri [2020] eKLR the Court in construing the provisions of Order 10 Rule 8 held as follows;Firstly, the party requesting for the interlocutory judgment must file an application and then effect service of the same upon the Attorney General; in this instance, the court record reflects that the respondent requested for judgment vide a letter dated 14th February, 2013 and the court record bears no application seeking the leave of the court to enter judgment against the government as provided by the law;16. Secondly leave can only be granted if it is established that the plaintiff’s claim was for a liquidated demand or pecuniary damages or for the detention of goods; in this instance the respondent is seeking damages for unlawful arrest and confinement; therefore, it is the finding of this court that the respondent’s claim is one in which a default judgment is not available and that the interlocutory judgment was obtained un-procedurally;

8. There is proof from the affidavit of service dated 3rd April 2021 that the defendant was served with the present application but has not replied to the same. The court, therefore, finds that the plaintiff has complied with the provisions of Order 10 Rule 8 of the Civil Procedure Rules.

9. What then should be the next step? Should interlocutory judgment be entered based on the application as filed? The plaintiff herein seeks for leave and at the same time upon obtaining such leave for judgement to be entered.

10. In Gulf Fabricators v County Government of Siaya [2020] eKLR the court held as follows;In other words, albeit leave of the court was granted, such leave was not and did not operate as interlocutory judgment. The plaintiff was expected to use the leave granted to request for judgment in default of appearance and defence, which was not done in the present case.

11. In this case the applicant has sought for leave and judgement to be entered. This court, sees nothing irregular in obtaining leave and within the same application seeking for default judgement. It finds it in order to allow the Notice of Motion dated 10th August 2021 in terms of prayer 1, 2 & 3

DATED DELIVERED AND SIGNED THIS 13TH DAY OF MAY 2022ALI-ARONIJUDGE