Attorney General William Change Wambugu v Phylis Wangari Maina Wachira Waikwa

The judge contrasted rule 4, whose discretion is wholly unfettered, with rule 55(3), which is fettered by the sufficient-cause requirement. Tracing rule 9 of the old Court of Appeal for Eastern Africa Rules through Ngoni-Matengo, Nas Airport Services, Harnam Singh and Belinda Murai, he held that a registry mistake, deprivation of an accrued right through no fault of the applicant, or a counsel's mistake may suffice, but pure delay, lack of diligence, and the non-opposition of the other side do not; confusion and slothfulness never can.

Taking a date by consent relieves the other side and the court of any duty to remind counsel. Mrs Madahana had entered the matter against the correct date, did not tell the court what efforts she made to find out where the case was, and learned of the dismissal only two days later. Her further delay of some twenty-eight days in filing the restoration motion, justified by the thirty-day window in rule 55(4), showed the non-appearance was consistent with the applicants' conduct throughout.

The applicants' defaults were admitted: they neither served the 2nd and 4th defendants with the notice of appeal nor sought directions within seven days, took some three months to file their rectification motion, had it adjourned once for failure to serve the notice of motion, and then failed to attend a hearing date taken by consent. This course of conduct displayed the confusion and slothfulness which the judge held incapable of constituting sufficient cause.