Setting aside a default judgment in Kenya - Step by s​tep guide

If there is a default judgment aga​inst you and you want to defend the claim, you can apply to set aside the ​default judgment. To make an application, follow these steps.

​Setting aside a default judgment - Step by s​tep guide​​​​​​​
Step 1: Confirm details of the default judgment
Step 2: Get the forms
Step 3: Fill out the forms 
Step 4: File the forms
Step 5: Go to court

Step 1: Confirm details ofthe default judgment
You may not have full details of the case and default judgment against you, for example because you only fo​undout about it when the sheriff came to your house or money was missing from your bank account.

Step 2: Get the forms You will need two forms:
*.​Notice of motion
* Affidavit.

Step 3: Fill out the forms 
The forms should:
*.​​ask the court to setaside the default judgment and allow you to file a defence
*.ask the court to stay enforcement until at least the hearing of your motion
*.state how costs should be dealt with.

The affidavit should:
*.explain why a defence was not filed before the default judgment
*.explain any delay in applying to set aside the default judgment
*.contain details of your defence to the claim.You need to sign the affidavit under the heading 'Signature' and under the heading 'Affidavit'. You need to make an oath or affirmation and sign it in front of a lawyer. If the affidavit section of the form is on more than one page, you and the witness must sign the bottom of each page.

Step 4: File the formsThe notice of motion andthe affidavit need to be filed at the same court where the statement of claim was filed and the default judgment entered. It is a good idea to attach a draft of your defence to your affidavit.​You must file your notice of motion within 14 days of signing it. There is no filing fee in the small claims division. You will need to file the original plus a copy of the notice of motion and affidavit. The court will keep the original and giveyou back the stamped copy. You will then need to make a copy of the documents and serve them on the plaintiff or their lawyer.When you file the documents, the court willgive you a hearing date. The court will then send the plaintiff a 'Notice of Listing'. This is a letter informing them of the notice of motion and the date, time and place of the hearing.

Step 5: Go to court
At the hearing the registrar or magistrate will consider your notice of motion and affidavit and any submissions from you and the plaintiff. You might find it useful to make notes about what you want to say at the hearing. You can tell the court:
*.​the reason why you didn't file a defence within 28 days
*.if relevant, the reasonwhy you delayed applying to set aside the default judgment
*.that you have a bona fide (genuine) defence. You must provide some facts tothe court that show your proposed defence is reasonablyarguable.

If you lose
If the court did not set aside the default judgment, the plaintiff can continue to enforce the judgment. You can apply to have that refusalreviewed by a magistrate. You must do this within 28 days of the decision.

There is no limit on the number of times you can apply but generally the court will only make a different decision if you have new information or evidence. Before asking for a review, you should getlegal advice.

If you Win
If the court sets aside thedefault judgment, the registrar will make ordersfor you to file a defence within a certain time (usually within 14 days). If you do not follow theseorders the plaintiff can apply to have the judgment re-entered.

​Costs
If the court finds that the failure to file a defence within 28 days is your own fault, the court will normally order you to paythe plaintiff's 'costs thrown away'. This is the cost of them attending the hearing, as well as the cost of any enforcement action they may have already taken. If you are able to prove that you did not receive the statement of claim orthat the plaintiff did not serve it properly, the plaintiff may be ordered to pay your costs.
The court may instead order:
*.​'costs in the cause'. This means that the costs of the application to set aside judgment will be dealt with at the end of the case.
*.'each party bear their own costs'. This means that you and the plaintiff each haveto pay your own costs.