JAMES G. K. NJOROGE T/A BARAKA TOOLS & HARDWARE (A FIRM)
V.
KENYA CEMENT MARKETING CO LTD. & 2 OTHERS

JUDGMENT OF J. MOHAMMED, JA.

Background

[1] This appeal has a long and chequered background. The appeal originated from High Court Civil Suit No. 3737 of 1995 that was filed by James G. K. Njoroge t/a Baraka Tools and Hardware Limited (the appellant). By an amended Plaint dated 20^th December, 2005 the appellant sued Kenya Cement Marketing Limited (the 1^st respondent) seeking damages for breach of contract and loss arising out of under delivery and erroneous invoicing.

[2] The 1^st respondent despite being served with the plaint and the summons, failed to enter appearance and on 15^th March, 1996 an interlocutory judgment in default of defence was entered against it. The 1^st respondent applied to the High Court to set aside the interlocutory judgment. The application was dismissed by the High Court, (Bosire J, as he then was) in a ruling dated 23^rd May, 1996.

[3] Dissatisfied with that ruling, the 1^st respondent appealed against that decision to this Court in Civil Appeal No. 75 of 1997. Des…