In the application dated 29.03.2023 the Defendant seeks to set aside the judgment dated 15.03.2023. In that judgment Visram J., found the Defendant liable and awarded the Plaintiff Kshs. 350,000.00 as damages for defamation. The Defendant seeks to set aside the judgment on the ground that it was not served with process. The application is opposed by the Plaintiffs.
I have considered the application and the opposition to it as against the general principle that the court has unfettered discretion to set aside ex-parte proceedings where justice demands. In this matter it is clear that the Defendant was not served with a hearing notice for the hearing date.
In the circumstances I allow the application and make the following orders:
(a) The judgment dated 15.06.2023 is set aside.
(b) The sum of Kshs. 300,000.00 shall remain in court pending the hearing and determination of suit.
(c) This suit is transferred to the Magistrates Court at Nairobi, Milimani for hearing and disposal.
(d) The Magistrates Court is directed to hear and determine the matter within 6 months from the date it is first fixed for mention for directions before that court.
(e) The Defendant shall pay thrown away costs of the application assessed at Kshs. 15,000.00 within 7 days.
DATED and DELIVERED at NAIROBI this 16th day of FEBRUARY 2024
D. S. MAJANJA
JUDGE