1.This is the notice of motion dated 15th October 2021 brought under section 1A, 1B 3A 63(e) Civil Procedure Act Cap 21, Order 10 Rule 11, Order 51 Rule 1 of Civil Procedure Rules 2010 and all enabling provisions of law.
2.It seeks orders:-
2.That the honourable court be pleased to stay the execution of the exparte judgment to Lady Komingoi J delivered on 29th April 2021 and all the consequential proceedings taken in this matter pending hearing and determination of the application interparties.
3.That the honourable court be pleased to set aside the exparte judgment and all the consequential proceedings taken in this matter pending hearing and determination of the suit filed herein.
4.That the honourable court be pleased to grant unconditional leave to the Defendant/Applicant to file its defence out of time or upon such conditions as are fair and just in the circumstances of this case.
5.That the costs of this application be in the cause.
3.The grounds are on the face of the application and are set out in paragraphs (a) to (k).
4.The application is supported by the affidavit of Mercy Kamau, advocate for the Defendant/Applicant sworn on the 15th October 2021.
5.The application is opposed. There is a replying affidavit sworn by Josiah Kariuki Karimi, the Plaintiff/Respondent on the 10th November 2021.
6.On the 22nd March 2022, the court with the consent of parties directed that the notice of motion be canvassed by way of written submissions.
The Defendant’s/Applicant’s Submissions
7.They are dated 22nd May 2022. They raise four issues for determination.
8.The Defendant/Applicant confirms that it was in receipt of the summons to enter appearance as well as pleadings from the Plaintiff’s advocate. It is further submitted that the default judgment entered on 29th April 2021 while regular, was obtained without the participation of the Defendant/Applicant in the proceedings in the main suit. This was attributed to the Defendant’s/Applicant’s advocates not being able to obtain full instructions on how to proceed with the matter.
11.It is further submitted that setting aside judgment is a matter of the discretion of the court. It has put forward the case of John Mukuha Mburu v Charles Mwenga Mburu  eKLR. This application was filed without delay as the Defendant/Applicant was made aware of the judgment on 27th September 2021. This application was filed on 15th October 2021.
12.The Defendant/Applicant stands to suffer prejudice as the suit property may be lost while the Plaintiff/Respondent stands to suffer no prejudice as he can be compensated by costs.
13.The Defendant/Applicant has shown a plausible reason why it failed to file a defence within the prescribed period and as such the court ought to exercise discretion in its favour. It prays that the application be allowed.
The Plaintiff’s/Respondent’s submissions
14.They are dated 27th June 2022. He submits that the Defendant/Applicant has not offered any explanation as to why it failed to appear in court on 14th October 2019 for pretrial and or on 14th October 2020 for hearing.
15.Judgement was delivered and the Defendant/Applicant was served with a copy vide a letter dated 24th June 2021 and received on 28th June 2021. Since then the Defendant/Applicant did not bother to apply to set aside the judgment but rushed to court with this application five months later after being served with a draft decree for approval. He has put forward the case of Shah vs Mbogo  EA 166.
16.The Defendant/Applicant seeks to delay or deliberately obstruct the course of justice. He prays that the application be dismissed with costs.
17.I have considered the notice of motion, the affidavit in support and the response thereto. I have considered the written submissions filed on behalf of the parties and the authorities cited. The issues for determination are:-(i)Whether the Defendant’s/Applicant’s application is merited.(ii)Who should bear costs of this application?
18.Order 10 rule 11 of the Civil Procedure Rules provides that:-
19.It is the Defendant’s/Applicant’s submissions that it were duly served with summons to enter appearance and other pleadings by the Plaintiff/Respondent. It admits that the Judgment herein was entered regularly. It is its case, that failure to participate in the proceedings was due to lack of instructions to the counsel on record.
20.The Plaintiff/Respondent on the other hand contends that the Defendant/Applicant has not offered any explanation as to why it did not participate in the hearing despite being served.
21.I have gone through the affidavit of Mercy Kamau, Advocate for the Defendant/Applicant. It confirms that they were aware of this suit. The issue of the transition of services between Nairobi City County and Nairobi Metropolitan Services could not have prevented the said advocate from attending court on the dates mentioned and seek more time. In the case of Mbogo v Shah  EA 166 the Court of Appeal held thus:-
22.I have gone through draft defence annexed to the application. In paragraph 4 it states:-
23.I find that the Draft defence does not raise triable issues in view of the documents produced by the Plaintiff.
24.Judgment was delivered on 29th April 2021 and the same was served on the Defendant/applicant on the 28th June 2021. I find that this application has been brought after an inordinate delay. No explanation has been given.
25.In conclusion, I find that the Defendant/Applicant has failed to demonstrate that it deserves this court’s discretion. The Plaintiff ought to be left to enjoy the fruits of his judgment.
26.I find no merit in this application and the same is dismissed with cost to the Plaintiff/Respondent.It is so ordered.