Setting Aside A Civil Default Judgment in Kenya

Learn what to do if you’ve discovered that a “default judgment” was entered against you, which can happen even if you didn’t know you’d been sued and never appeared in court.

Overview
To start a civil case, the “plaintiff” (the party suing) files a “complaint” with the court. A “complaint” describes what the plaintiff wants and identifies the “defendant” (the party being sued). The plaintiff also has the court issue a “summons” that notifies the defendant that he is being sued and needs to defend himself.The summons and complaint must be “served” (personally delivered by a process server) to the defendant. If the plaintiff is unable to serve the defendant (or the defendant is avoiding service), she can ask the court to serve by publishing a notice in a legal newspaper.If you have been served with a summons and complaint, you typically have twenty days to file a response with the court. If you fail to file with the court before your deadline, the plaintiff can ask the court fora “default judgment.” A “default judgment”is a money judgment awarded against you simply because you failed to appear in the case and defend yourself.If the court has entered a default judgment against you, the plaintiff can collect it like any other judgment. That means she can try to garnish your wages or attach your bank accounts, among other things.If you do not think the default judgment was appropriately entered against you, you must file a motion with the court asking the judge to “set aside” (void or nullify) the judgment. If the judge grants your motion, the case starts back up again. You can then appear in the case and assert whatever defense you have to plaintiff’s claims.

Q&A – Setting Aside Default Judgments
In what situations can a judge set aside a default judgment?The court’s rules state the circumstances in which a judge can set aside a default judgment.
A judge can set aside a default judgment for the following reasons, among others:*.Mistake, inadvertence, surprise, or excusable neglect of the party who failed to defend himself in the case
*.Fraud, misrepresentation, or other misconduct by the party who filed the case
*.The judgment has been satisfied, released, or discharged
*.The summons and complaint were never personally served to the defendant who judgment was entered against
So to set aside your default judgment, the judge must agree that one of these reasons addresses your particular situation and that your circumstances warrant the judgment being set aside.

Is there a deadline or time limit for me to ask the judge to set aside the default judgment against me?
Your deadline for filing a motion to set aside the default depends on the specific reason you are asking the judge to set thejudgment aside.If you are asking the judge to set aside your default judgment:
*.Because of your mistake, inadvertence, surprise, or excusable neglect, you must file your motion within six months after service of written notice of entry of the judgment.
*.Because of the other side’s fraud, misrepresentation, or other misconduct, you must file your motion within six months after service of written notice of entry of the judgment.
*.Because the judgment has been satisfied, release, or discharged, you must file your motion within a reasonable time.
*.Because you were never personally served with the summons and complaint, you must file your motion within six months after service of written notice of entry of the judgment.

Do I need to have a defense to the plaintiff’s claims in the case to ask the judge to set aside the default judgment?
Technically, you do not need to have a legal defense to the claims plaintiff makes in the case to file a motion to set aside a default judgment. But it helps if you do for a couple of reasons:
*.The judge might be more likelyto set aside the default judgment if she sees that you have a good defense to the plaintiff’s claims that might allow you to avoid liability altogether.
*.If you do not have a defense to plaintiff’s claims, you could end up in the same position you are in now (or worse).
FYI!If the judge sets aside your defaultjudgment, the case starts back up again. If you don’t have a defense, the final result could ultimately be the same – you could lose and have a judgment against you. But the judgment could actually be for more money! In many cases the plaintiff can force you to pay her attorney’s fees. Sothe more you fight the case, the more fees you could end up paying if you lose.