WILLIAM NTOMAUTA M'ETHANGA SUED AS M'MAUTA NKARI V. BAIKIAMBA KIRIMANIA

JUDGMENT OF THE COURT

1. This appeal relates to the decision of the High Court wherein the court declined to set aside a default judgment entered against the appellant and grant the appellant leave to defend the suit therein. We are fully aware that in an application before a court to set aside an ex parte judgment, the court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously. On appeal from that decision, the appellate court would not interfere with the exercise of that discretion unless the exercise of the same was wrong in principle or that the court did act perversely on the facts. See Magunga General Stores v. Pepco Distributors [1987] 2 KAR 89.

2. Bearing the foregoing in mind, the salient facts were that the respondent filed suit seeking inter alia, the eviction of the appellant from the parcel described as Ithima/Ntunene/40 (hereinafter referred to as “the suit property”) and an injunction …