Analysis and determination
6.This court has identified two main issues for determination in this application, namely:(a)Whether the ex parte judgment entered by this court (Njagi J) against the defendant was a regular judgment or an irregular judgment.(b)Whether the said judgment should be set aside, and the defendant granted leave to defend the suit.
7.It is important to from the outset note that the power of the court to set aside an ex parte judgment is discretionary. The discretion should however be exercised judiciously, and in a manner that promotes justice and the rule of law. It was held in Mbogo v Shah  EA 166, that the object of that discretion is to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but that it is not designed to assist a person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.
8.In an application to set aside an ex parte or default judgment such as is the case here, the applicant must show, at the very minimum two things:(a)That he/she was not aware of the suit for want of service, or that the service was improper; and(b)That he or she has a good defence that raises triable issues determinable only after a hearing.
9.On an application of this nature, a diligent applicant will have annexed to the application, a draft defence in which he or she has controverted and answered to the plaintiff’s claim. A setting aside application that bears no draft defence such as this one, commends itself for dismissal.
10.Mere lamentations by the applicant, as is the case in this application, are not enough. This is a court of law, and not a court of conjecture, emotions, mercy or sympathy. As such, it can only be persuaded, not by mere lamentation and emotion-whipping, but by the applicant diligently laying before court, compelling facts and evidence; as well as demonstrating diligence. The application should also be grounded on law and established legal principles. Therefore, an applicant in this kind of application, should not merely lament and hope that the court will be moved by such lamentation and just set aside the judgment.
11.Setting aside a duly entered judgment where the defendant has not annexed to the application their intended or proposed defence to the plaintiff’s claim, will be arbitrary, whimsical and speculative. In applications to set aside judgment, the applicant need supply the court with tangible material on which to exercise its discretion. Judicial discretion must be exercised judiciously, and not in the manner urged by this applicant. Courts should not be expected to act like fortune-tellers and magicians.
12.This being a court of justice and equity, it must balance the judgment-debtor’s interest and rights, with the decree-holder’s interest and rights. More specifically, while the judgment-debtor has a right to defend the suit, the decree-holder has a right to enjoy the fruits of its judgment. This is a delicate balancing act. Before judgment, both parties to the suit are at arm’s length as their respective positions in relation to the suit claim will not have been determined yet. But after judgment, fortunes will have changed, with one party having an upper hand over the other; usually the decree-holder in whose favour the judgment has been made and who needs to enjoy the fruits of its judgment.
13.For the losing party to upset the tables again, he or she will need to place before the court tangible and sufficient enough material, especially where an affidavit of service has been filed and is on record. Otherwise merely denying that you were served is not enough; and neither does it pose a formidable and legally sufficient challenge to an affidavit of service on record. To challenge the service, one has to not only deny having been served, but go further and contest the contents of an affidavit of service, as well as its truthfulness, credibility, and even point out other defects and impropriety in it, or of the service itself. Such contestation is usually peaked by applying to cross-examine the process server on his filed affidavit of service. In the case of this applicant, there has been no potent challenge to the affidavit of service of Wambugu Gitonga,sworn and filed herein on March 17, 2010.
14.This court (Njagi, J) at page 3 of its judgment held that service had been effected, and stated that the affidavit of service on record showed that the defendant was served on March 11, 2010. That despite having been served, she did not enter appearance. Simply denying that you were served and not bothering to go beyond that denial, as is the case with the defendant herein, does not provide the court with enough fodder on which to set aside an impugned judgment on ground of improper service, or the lack of it.
15.The defendant has in the submissions filed in support of this application cited Giella v Casman Brown Ltd  EA 358, apparently in support of the injunctive relief sought in prayer 2 of the application. With due respect, the principles laid down by the East Africa Court of Appeal in that case, were for interlocutory injunctions, where a suit is pending. Typically for applications brought under order 40 of the Civil Procedure Rules 2010, and not a setting aside application brought under order 10, such as this one.
16.The impugned judgment although ex parte, is regular, and is hereby upheld. The defendant having failed to show sufficient cause for setting it aside, her application is hereby dismissed with costs.