JOHN KIPKEMBOI KILEL V. DIAMOND TRUST BANK (K) LTD

RULING OF THE COURT

The applicant seeks the exercise of our discretionary jurisdiction under rule 5 (2) (b) of the Rules of this Court and order a stay of execution of the decree of the superior court (Khamoni J) in its Civil Case No. 44 of 1998. In that case after the applicant was served with summons to enter appearance and the plaint, he filed appearance within time but failed to file his written statement of defence in time. 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. In his affidavit in support of the application he deponed, inter alia, that he was neither served with summons to enter appearance and the plaint nor did he have any notice whatsoever of the proceedings in the suit. That was clearly not true as the record of proceedings before the superior court is clear that the applicant filed a memo…