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Some of the matters to be considered when an application is made are, the facts and circumstances, both prior and subsequent, and all the respective merits of the parties together with any other material factors which appear to have entered into the passing of the judgment, which would not or might not have been present had the judgment not been ex parte and whether or not it would be just and reasonable, to set aside or vary the judgment, upon terms to be imposed (Jesse Kimani v McConnell [1966] EA 547, 555 F). As I have stated earlier, where there is a request for amendment of pleadings as was the case in this case, and the court is inclined to grant leave to amend the pleadings, it was important that the court, while giving timelines, considers or exercises patience to allow the amendments to take effect before setting down the suit for hearing. Expedition should never override the ultimate goal of achieving justice for the parties; particularly where the delay is not inordinate. The judge had misdirected himself in stating that the appellant had not been present in person at the hearing of the summons to set aside the ex parte judgment while the record showed that he had been present and had stated the essence of his defence. The judge had made an error of fact which, if he had not made, he would have considered the decision of the magistrate in a different light. In addition, and as earlier stated, for the last one year when this judgment ought to have been delivered after the hearing of the appeal by Onyancha J(as he then was), the learned judge retired necessitating the typing of the proceedings and the files reassigned to judges in the Civil Division of the High Court for writing and delivering of the judgment. Again, after I was assigned the file herein, among other files, in June, 2016 I was deployed to the Judicial Review Division, an equally busy Division. That the court allowed the defendant/appellant to file an application to amend the defence and on 17 th October 2002, the application for leave to amend the defence was filed and fixed for hearing on 18 th November 2002.

If the magistrate had not felt able to examine the justice of the appellant’s application and whether there was a triable issue by questioning him and examining his pleadings, he should have at least offered him an adjournment, subject to being penalized for costs, so that the matter could be properly reviewed. Identify Your Target Area: Some shapewear focuses on targeting a specific area of the body instead of taking a broader approach. This allows each shape control garment to maximize improvement in the target zone. If you want to take this approach, you need to pinpoint the area you’re looking to accentuate. Specifically for slimming your tummy, you can choose from high-waisted briefs or camisole-style garments to successfully smooth your waistline. Depending on the style, you might also get a little extra boost to the bustline or some control for the upper thighs. On 28 th November 2002 Mr Achoki advocate appeared on behalf of Mr Wamalwa and requested for a hearing for 10.00 a.m. and the court set the matter for hearing for 11.15 a.m. Those are factors which, in my humble view, the learned trial magistrate ought to have taken into consideration and which she did not, at the time she made her decision the adjourn the first hearing to another definite date yet the application for leave to amend the defence had not been filed.The principles governing the exercise of the judicial discretion to set aside an ex parte judgment obtained in the absence of an appearance or defence by the defendant or upon the failure of either party to attend the hearing are clearly set out in the case of Python Waweru Maina V Thuka Mugiria [1983] e KLR as follows:

As this matter is too old, I direct that the trial record shall be expeditiously resubmitted to the Chief Magistrate’s Court at Milimani Law Courts for mention on 10/11/2016 for directions. In a brief rejoinder, Mr Kinyanjui counsel for the appellant submitted that the trial court did not deal with all the issues. Further, that when counsel sought for the file to lodge the application for setting aside proceedings, the trial court replied confirming non availability of the court file until judgment would be delivered which was done in February 2003. He submitted that he was diligent in handling the matter on behalf of his client. On 18 th November 2002 Mr Mwaniki held brief for Mr Kinyanjui for the defendant and sought for adjournment because Mr Kinyanjui was engaged before Mwera J in HCC 2176/01 which matter a hearing notice was served upon him under certificate of urgency.

I have considered the submissions by both parties’ advocates, which submissions essentially provide a detailed exposition of the trial record and what exactly transpired. In my humble view, the trial magistrate did not exercise her discretion judiciously when she dismissed the defendant/appellant’s application for setting aside the exparte judgment. I also find that the conduct of the proceedings did not accord the defendant a fair sense of justice and fairness before the trial court.

That the Learned Magistrate erred in law and in fact in dismissing the appellant’s application dated 19th May 2003 when the respondent had not in law opposed the said application. Although the trial magistrate’s comments that she did not comprehend the defence counsel’s sentiments in view of her elaborate explanation, this court does comprehend the concerns raised by Mr Kinyanjui, whose efforts to make the court understand his predicament came to naught. This being a first appeal, this court is obliged to abide by the provisions of Section 78 of the Civil Procedure Act which empowers the court to: Vide a plaint dated 26 th January 2001 and filed in court on 1 st August 2001, the plaintiff/respondent herein Antony Maina Wachira sued the appellant/defendant claiming that he was the appellant’s employee and that while he was so engaged upon his employment with the appellant, he was injured. He attributed his injuries to the negligence of his employer the appellant herein. He claimed for general damages and costs of the suit. The learned trial magistrate accordingly dismissed the appellant’s application for setting aside exparte judgment with costs, thereby provoking this appeal as set out in the 7 grounds of the Memorandum of Appeal reproduced earlier on.I note that when Mr Kinyanjui sought for an adjournment to enable him file an application for leave to amend since it appears that as at that time, pleadings had closed, the court grudgingly, and granted him the adjournment proceeded to fix a hearing date, without paying regard to the question of whether, upon the filing of the application for leave for amendment of the defence, the plaintiff would have wished to file a reply or whether the plaintiff, upon being served with a draft amended defence, would have wished to file an amended plaint.