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…......................................................DEFENDANT R U L I N G The defendant/applicant has moved the court by way of Chamber Summons under Order 9A Rule 10 of the Civil Procedure Rules for an order that the ex-parte…

…judgment entered in default of defence on 19th March, 1996 be set aside and that she be allowed to file a defence.…

….............................................RESPONDENT RULING By her application dated 19th January, 1994 the second defendant applies for three orders namely that execution of decree herein against her be stayed, that ex…

…parte judgment entered against her on 28th March, 1984 be set aside and that she be allowed to file her defence.…

….… RESPONDENT RULING This is an application by the defendant in the suit that the ex-parte judgment entered against him on 25/2/88 be set aside on the grounds that he was never served with summons to enter appearance and…

…I allow the application, set aside the ex-parte judgment entered on 25/2/ 88 and the execution thereon.…

….… RESPONDENT RULING This is an application by the defendant in the suit that the ex-parte judgment entered against him on 25/2/88 be set aside on the grounds that he was never served with summons to enter appearance and…

…I allow the application, set aside the ex-parte judgment entered on 25/2/ 88 and the execution thereon.…

…parte judgment was for hearing.…

…The suit was heard ex parte and judgment pronounced against the appellant.…

…That this act amounted to negligence on his part to warrant the dismissal of the application to set aside ex-parte judgment.…

…There are no limits or restrictions of the judge’s discretion to set aside an ex-parte judgment except that if he does vary any judgment he does so on such terms as may be just.…

…We have to be careful when differing with a judge who has exercised his undoubted discretion not to set aside an ex-parte judgment.…

…However, we are far from saying that in order to enable a judge to exercise his discretion to set aside an ex-parte judgment the two factors so far gone into by us that is (1) that the court should be satisfied that there…

…Is a court entitled to presume that service was effected and leave an ex parte judgment undisturbed even when there is stark evidence that the defendants did not have notice of the hearing.…

…Where however, as in this case, it comes to light later that the process was not delivered and there was no fault of an inexcusable nature to attach to the defendant it will be an affront to equity to have an ex parte judgment…

…He filed his action in the Court of the Bungoma District Magistrate on July 18, 1978, and later obtained an ex parte judgment against Wamunyama in default of appearance.…

…So Wamunyama applied to the Bungoma District Magistrate to set aside the ex parte judgment and was successful. He entered appearance and filed his defence.…

…But, mark you, the request for judgment for Shs 1,200/- was filed on march 3rd, 1988 and an ex parte judgment entered on March 7th, 1988.…

…The judge, having refused an application for an adjournment to enable an application to be made for setting aside the ex parte judgment, was bound by the judgment.…

…The defendant applied to have the ex-parte judgment set aside.…

…Consequently several weeks later on the application of the respondents an ex parte judgment was entered against the appellant.…

…applied to the same court, under rule 8 of the same order, to have the dismissal order set aside, but that application was dismissed and so was the appeal to the High Court (Gachuhi J) from the refusal to set aside the ex…

…parte judgment.…

…I am aware that under order 9A rule 10 and order 9B rule 8 the Court’s discretion to set aside a judgment entered ex parte is wide and unfettered but all the same that discretion must be exercised according to law in conformity…

…If that be correct then Ex Debito Justitiae the ex parte judgment must be set aside.…

…He asked for orders that Mr Justice J S Patel’s ruling and orders be set aside, the ex-parte judgment of June 11, 1979 and its decree be set aside, Nduhiu be given leave to file a reply to the counterclaim and the suit be…

…prior and subsequent, and all the respective merits of the parties together with any material factor which appears to have entered into the passing of the judgment, which would not or might not have been present had the judgment…

…Considering the decision we have come to, the inevitable course is to allow the appeal, set aside both the ex parte order dismissing the appellant’s case and the ex parte judgment on the counterclaim.…