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Rikiai v Baia [2021] KIHC 24; Miscellaneous Application 116 of 2020 (18 November 2021)

JUDGMENT

1. By his Notice of Motion, the first named Applicant through his lawyer applied to set aside the default judgment issued on 1 June 2020. The application was supported by the affidavit of the first Applicant, Tekea Rikiai.
   
2. Before going into the submissions made by both counsels, I will set out my discontent in having observed lack of proper preparation of cases with respect to consulting and following the Rules dictating this court’s process. As I set out in similar applications like the present case, it is very important in the name of justice for lawyers to study the relevant Rule before filing an application. If you are using a Notice of Motion, the application should be done in accordance to Rule 55.
   
3. Moreover, the Motion only set out orders or reliefs sought with only a statement claiming that the Applicant will rely on his affidavit. According to Order 55 rule 4, said that the application by a motion should always be supported by ground(s). Nothing is done to this extent even though the affidavit was filed.
4. Since the default judgment was entered, the Applicant should also file its proposed defence to the substantive suit for this court to consider before exercising its discretion to set aside the default judgment. However, the Applicant has not done so.
   
5. In considering the application and affidavit of the first Applicant, the only fact from the affidavit saving the Applicant’s application was his criminal complaint against the Respondent filed after the incident resulting in the substantive suit. It shows that the Applicant disputed his wrongdoing with respect to the vehicular incident.
   
6. Ms Timeon, for the Respondent strongly argued about the delay and prejudice against her client who have done a lot in following the court’s process and finally receiving the default judgment in her favour however, in weighing the application and the Respondent’s submission, and taking into consideration the amount of judgment debt and principles of fairness, this court exercises its discretion to grant the application but to award costs for the Respondent.
   
7. ORDERS
   1. Default judgment issued on 1 June 2020 is set aside;
   2. Costs of $250.00 to be paid by the first Applicant to the Respondent one week from today;
   100. The usual process to continue and hearing to follow after pleadings’ closure.
        

Dated the 18^th day of November 2021

__________________________
Judgment of Abuera Uruaaba,
Commissioner of the High Court