REPUBLIC OF KENYA

IN THE PRINCIPAL MAGISTRATE’S COURT AT CHUKA

CHUKA LAW COURTS
CIVIL SUIT NO 253 OF 2016

SAM ………………….…………………………………………….PLAINTIFF/RESPONDENT

-VERSUS-

MONICA……………………………………………….…...…….…DEFENDANT/APPLICANT

CERTIFICATE OF URGENCY

I, WAKILI MWEREVU, an Advocate of the High Court of Kenya practicing as such and as a
partner in the firm of M/s Wakili Mwerevu & Associates Advocates who have the conduct of this
matter on behalf of the Applicant do hereby certify that this application is most urgent on the
following grounds:

1. THAT exparte Judgment in this matter was passed against the Defendant by this
honourable court on 31st August, 2016 and the Defendant/Applicant is apprehensive that
the Plaintiff/Respondent may at any time from now execute as against the
Defendant/Applicant thereby prejudice the Defendant/Applicant’s chance of defending
the matter.

2. THAT due to matters beyond her control, the Defendant/Applicant has not filed her
Defence but is ready and willing to file a Defence that is arguable and with
overwhelming chances of success.

3. THAT this application and the intended Defence will be rendered nugatory if the
exparte Judgment is not set aside as prayed for in the application herein.

DATED AT NAIROBI THIS DAY OF 2016.

WAKILI MWEREVU
WAKILI MWEREVU & ASSOCIATES
ADVOCATES FOR THE DEFENDANT

DRAWN & FILED BY: -

WAKILI MWEREVU & ASSOCIATES
ADVOCATES
BARCLAYS PLAZA, 6TH FLOOR
LOITA STREET
P O BOX 24571-00800
NAIROBI
 REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT CHUKA
CHUKA LAW COURTS
CIVIL SUIT NO 253 OF 2016

SAM ………………….…………………………………………….PLAINTIFF/RESPONDENT

-VERSUS-

MONICA……………………………………………….…...…….…DEFENDANT/APPLICANT

NOTICE OF MOTION

(Under order 10 rule 11 and Order 51 rule 1 of the Civil Procedure Rules, 2010
and section 1A, 1B and 3A of the Civil Procedure Act )

TAKE NOTICE that this Honourable Court shall be moved on the day of
2016 at 9.00 o’clock in the forenoon or soon thereafter when Counsel for the
Applicant may be heard for ORDERS: -

1. THAT this application be certified as urgent and service be dispensed with in the first
instance.

2. THAT pending hearing and determination of this application this Honourable Court be
pleased to stay the proceedings herein in particular the execution of the decretal sum
awarded herein.

3. THAT this Honourable Court be pleased to set aside the exparte Judgment entered on 31 st
August, 2014 against the Defendant herein.

4. THAT the costs of this Application be provided for.

WHICH APPLICATION is grounded on the following grounds that: -

a) The exparte Judgment in this matter was passed against the Defendant/Applicant by
this honourable court on 31st August, 2016.

b) The matter is now awaiting execution of the decretal sum.

c) The Defendant/Applicant has previously been unrepresented in the cause and now
intends to defend the suit to its logical conclusion.

d) The Defendant/Applicant was never served with summons and was therefore not aware
that there was a suit in court against her.

e) As a result, she was unable to enter appearance nor file a defence thus leading to the
present exparte Judgment entered against her.
 f) Both the Constitution and the rules of natural justice envisage that a party to a suit be
given adequate opportunity to appear and defend their selves.

g) The Defendant/Applicant has an arguable Defence with a high chance of success and is
willing to abide by such terms as may be ordered by this Court in granting the orders
sought herein.

h) No prejudice will be suffered by the Plaintiff/Respondent which cannot be compensated

by way of costs.

i) It is in the interest of justice that the Court exercises its unfettered discretion and come
to the Defendant/Applicant’s aid.

AND FURTHER supported by the annexed Affidavit of MONICA and other reasons to be
adduced at the hearing thereof.

DATED AT NAIROBI THIS DAY OF 2016.

WAKILI MWEREVU
WAKILI MWEREVU & ASSOCIATES
ADVOCATES FOR THE DEFENDANT

DRAWN & FILED BY: -

Wakili Mwerevu & Associates
Advocates
Barclays Plaza, 6th Floor
Loita Street
P O Box 24571-00800
NAIROBI

TO BE SERVED UPON:
Delano Simiyu & Company
Advocates
Imenti Building 7th Floor,
Mbachu Street,
P.O. Box 24659-00100,
CHUKA.

“TAKE NOTICE: If any party served does not appear at the

time and place above-mentioned such orders will be made
and proceedings taken as the court may think just and
expedient.”
REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT CHUKA
 CHUKA LAW COURTS
CIVIL SUIT NO 253 OF 2016

SAM ………………….…………………………………………….PLAINTIFF/RESPONDENT

-VERSUS-

MONICA……………………………………………….…...…….…DEFENDANT/APPLICANT

AFFIDAVIT

I, MONICA, a resident of Nairobi and of P.O. Box 10292-00100 Nairobi in the Republic of
Kenya do make oath and swear as follows: -

1. THAT I am the Defendant herein as such am well versed with the facts of this suit and
therefore competent to depone this affidavit.

2. THAT I have read the Plaintiff’s Plaint, his Witness Statement and document in support
of his case and fully comprehend the same and that in support of my application I wish
to state as follows.

3. THAT on or about 15th July, 2016 the Plaintiff and I entered into a written agreement in
which the Plaintiff would supply me with timber (hereinafter goods) at a price of Kenya
Shillings Three Hundred Thousand (Kshs. 300,000/=).

4. THAT we further agreed that payment for the said goods will be effected within two
weeks of the execution of the agreement by myself.

5. THAT in between the said two weeks within which the payment was to be done, I
embarked on an urgent business trip out of the country, in Zambia and left my business
in the control of my husband. It was my honest belief that I would be back in time to
settle the Plaintiff’s claim before the two-week period elapsed.

6. THAT due to reasons beyond my abilities I was forced to extend my stay in Zambia
beyond the time within which I was to effect payment of the moneys owed to the
Plaintiff. I however, emailed my husband and asked him to inform the Plaintiff that I
would settle the moneys as soon as I arrive back in the country.

7. THAT I was therefore surprised and quite taken a back when a few days after jetting in
the country, to be served by the Plaintiff with a document which my advocate has
 advised me and which advice I verily believe to be true, referred to as ‘a 10 day
Judgment Notice.’

8. THAT besides the court document referred to in 7 above, I have never been served
with any other document by the Plaintiff or his advocates.

9. THAT I have been advised by my advocate that the rules of procedure in such kind of
matters require that I be served with summons to enter appearance so as to appear and
defend myself. And only after I have been thus served and failed to appear and defend,
should the Plaintiff be entitled to move the court for an exparte Judgment. Therefore as
it can be seen on the face of it, it is not my fault that I failed to enter appearance and
file Defence hence the exparte Judgment.

10. THAT the Plaintiff’s mistake and/or oversight should not be ascribed to the
Defendant/Applicant.

11. THAT I verily believe that it is in the interest of justice that the exparte Judgment
against the Defendant/Applicant be set aside and the Defendant/Applicant be granted
leave to defend the suit.

12. THAT the Defendant/Applicant is willing to meet any condition with regard to costs for
setting aside the judgment.

13. THAT what I have deponed herein is true to the best of my knowledge, information and
belief save where otherwise expressly disclosed.

Sworn at NAIROBI by the said )

MONICA ) _______________________
this ) DEPONENT
day of 2016 )

BEFORE ME )
)
)
)
COMMISSIONER FOR OATHS )

DRAWN AND FILED BY:

Wakili Mwerevu & Associates
Advocates
Barclays Plaza, 6th Floor
Loita Street
P O Box 24571-00800
NAIROBI