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…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.…

…Consequently ex parte judgment in default of defence was entered on the application of the respondent, Diamond Trust Bank Kenya Ltd.…

…Subsequently the applicant moved the superior court for an order vacating the ex parte judgment.…

…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…

…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.…

…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.…