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….............................................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.…

…parte judgment was for hearing.…

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

…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…

…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.…

…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.…

…For example, the Court of Appeal in CMC Holdings Ltd vs Nzioki [2004] KLR 173 held; “In an application for setting aside ex parte judgment, the Court exercises its discretion in allowing or rejecting the same.…