Dr. Joseph Nathaniel Kipruto Arap Ng'ok v The Attorney General & Investment Promotion Centre
The bottom line
#Kenya's Court of Appeal confirmed that default judgments can be set aside by any judge of equal rank, and that the Attorney General may represent State corporations in court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Ransley, J. had jurisdiction to set aside the judgment entered by Ojwang, J., the judgment not being an exparte judgment
- 2.Whether cause was shown for setting aside a regular judgment
- 3.Whether there was inordinate delay by IPC in applying to set aside the judgment
- 4.Whether M/s. Wekesa & Co. Advocates could represent IPC without leave of court under Order III Rule 9A CPR
- 5.Whether the Attorney General has the right to represent a State Corporation in civil proceedings
Key legal issues
#Jurisdiction of a judge of co-ordinate jurisdiction to set aside a default judgment
Ransley, J. had jurisdiction; the judgment was entered under Order IXA Rule 7 and could be set aside under Rule 10, and he heard the application on the direction of Ojwang, J.
The judgment was entered for non-appearance and default of defence under Order IXA Rule 7 CPR. By Order IXA Rule 10, such a judgment could be set aside. Whether termed exparte or interlocutory, any judge of co-ordinate jurisdiction could set it aside. Ojwang, J. himself directed that the application be allocated to another judge for fairness, so Ransley, J. was properly seised. He did not sit on appeal over Ojwang, J.'s ruling.
Setting aside default judgment and appellate interference with discretion
IPC showed sufficient cause; the discretion was exercised judicially and the appellate court would not interfere.
The Shah v Mbogo principles apply: the discretion exists to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction. IPC promptly requested the AG to act, honestly believed it was represented until the appearance was declared a nullity, and promptly instructed advocates and applied to set aside. Setting aside averted condemnation unheard for no fault of its own.
Whether the Attorney General may represent a State Corporation in civil proceedings
The AG has an unquestionable right to represent a State Corporation as counsel in civil proceedings; the High Court erred in holding otherwise and striking out the AG-filed pleadings.
The Investment Promotion Centre Act gives IPC the right to sue and be sued but imposes no restriction on representation. The High Court's decision rested on no written law. Chief Nehemia Gotonga, decided under the Government Proceedings Act, is persuasive and good law: representation of a litigant by the AG is an administrative discretion not subject to judicial supervision. The court distinguished AG v KCB, which concerned instituting suit in the AG's own name.
Whether Wekesa & Co. Advocates needed leave to come on record
No leave was required because, following the nullity ruling, IPC had no advocate on record; there was no change of advocates within Order III Rule 9A.
Rule 9A governs a party who previously engaged an advocate intending to act in person or engage another advocate after judgment. IPC had never engaged the AG as counsel; the AG's documents were declared a nullity, so IPC was never represented ab initio. When Wekesa & Co. filed notice of appointment there was, in conformity with the court's decision, no advocate on record.
Legal principles established
#- A judgment entered under Order IXA CPR for non-appearance or default of defence may be set aside by the judge who entered it or any judge of co-ordinate jurisdiction.
- The Attorney General has discretion to appear as counsel for a public officer or a State Corporation in civil proceedings, and it is not the function of the court to supervise that administrative discretion.
- The Attorney General cannot institute a suit in his own name on behalf of a State Corporation with power to sue and be sued in its own name; such a suit must be instituted in the corporation's name.
- Order III Rule 9A CPR on change of advocate applies only where a party had previously engaged an advocate; where no advocate was validly on record, no leave is required to come on record.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to both respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 565 of 2004
- Jurisdiction invoked
- First appeal against ruling of the High Court (statutory appeal under Civil Procedure regime; no specific constitutional provision stated)
Relief refused
#Restoration of the default judgment entered by Ojwang, J. against IPC
Ransley, J. exercised his discretion judicially; IPC showed cause and would have been condemned unheard for no fault of its own
Costs
Appeal dismissed with costs to both respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Whether the judgment entered by Ojwang, J. under Order IXA can be termed exparte or interlocutory, Ojwang, J. or any other judge of co-ordinate jurisdiction had jurisdiction to set it aside.
it is not the function of the court to supervise how the Attorney General exercises his administrative discretion as to who to represent or otherwise in civil proceedings
This is in our view, a typical case where the AG has unquestionable right to represent a State Corporation in Civil proceedings.
For the foregoing reasons, the appeal is dismissed with costs to both respondents.
Issues in the judgment
#Date of Wekesa & Co. Advocates' appearance stated as 29th April, 2003, inconsistent with the chronology (judgment entered 15th April, 2005)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dr. Joseph Nathaniel Kipruto Arap Ng'ok v The Attorney General & Investment Promotion Centre", Case Analysis (2010). Civil Appeal No. 326 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/477/eng@2010-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.