Background
1. Before the court is an application dated 11th October 2023. The application seeks leave for the firm of SM GIOCHE & CO. ADVOCATES to come on record for the 3rd defendant/applicant. That prayer is not opposed and the same is therefore granted as prayed.
2. The application further seeks to set aside the interlocutory judgment entered against the 3rd defendant on 22nd April 2022 in default of defense and appearance. It is supported by an affidavit sworn by the 3rd defendant in which he avers that he only received a text message on 16th October 2023 from the judiciary portal that the matter was scheduled for mention on 16th October 2023 and by the time he instructed his counsel to peruse the court file, interlocutory judgment had been entered in a suit where he alleges that he was never served.
3. The application is opposed by way of Grounds of Opposition and a Replying Affidavit sworn by the plaintiff. The plaintiff has brought it to the attention of this court that a similar application had been filed by the 3rd defendant and the same was dismissed vide a ruling of this court dated 10th March 2023.
Analysis and determination
4. For the avoidance of any doubt I shall reproduce the ruling by this court as relevant. I note that the application was made by all the defendants and on similar grounds as the present application. The Learned Judge found as follows: -
[19]. It would seem that as at 13 / 4/ 2022, the defendants were not only aware of the suit but their own advocate attended court and indicated that instructions had been received. Although those advocates drew the Memorandum of Appearance on 14 /4 /2022, they waited a month later to file the same.
[20]. It should be noted that the plaintiff was forced to serve the defendants twice. That the interlocutory judgment was entered on 22 / 4 / 20222, 7 days after the defendants’ advocate had attended court on 14 / 4/ 2022.
[22]. In the circumstances, the interlocutory judgment cannot be said to have been irregular. Lack of service of notice of entry of judgment is not a ground per se to invalidate a regular judgment. It goes to issues of execution and nothing more.
[23]. The defendants and their advocates did not own up that they failed to enter appearance out of their own mistake. That the Court should forgive “such mistake, instead they gave lame excuses attacking an otherwise regular judgment. I do not think that the discretion of the Court is to be exercised in favour of such a party.
5. I am satisfied that the application offends the provisions of section 7 of the Civil Procedure Act as the same is res judicata. Having so found, I shall say no more on it save to point out that the draft defense attached to the application consists of mere denials and does not raise any real issues for trial. No purpose will be served by summoning the process server who effected service of summons to enter appearance to the applicant herein for cross examination as this court has already pronounced itself on the issue.
Disposition
6. In the circumstances, I find the application to be without merit and dismiss the same with costs.