The 1st Defendant's in its application dated 08.07.2022 seeks to set aside the default judgment entered against it. I have considered the arguments by counsel for the Plaintiff and the 1st Defendant and I hold as follows.
The Plaintiff’s Request for Judgment dated 17th January 2022 was premised on the 1st Defendant’s failure to enter appearance and file defence despite service of summons to enter appearance. The 1st Defendant filed its memorandum of appearance on 18.03.2022 hence the proper application was for judgment in default of filing defence. In so far as the default judgment was entered for failure to enter appearance, it was irregular as the 1st Defendant had already entered appearance. I must therefore set aside it aside ex-debito justiciae as it is irregular. The 1st Defendant shall however pay thrown away costs.
The application dated 08.07.2022 is therefore allowed on terms that:
1. The default judgment entered against the 1st Defendant be and is hereby set aside.
2. The 1st Defendant shall file and serve its Statement of Defence within 7 days from the date hereof.
3. The 1st Defendant shall pay thrown away costs of KES. 50,000.00 within 7 days from the date hereof.
4. The Plaintiff’s application dated 13.06.2022 for execution of the default judgment is hereby dismissed.
DATED and DELIVERED at NAIROBI this 16th day of AUGUST 2022
D. S. MAJANJA
JUDGE