JUDGMENT OF PLATT JA
This appeal was brought against the decision of the High Court of Kenya given on March 28, 1984 by which the learned judge refused to exercise his discretion derived from Order 9A Rule 10 of the Civil Procedure Rules. The defendants in the case, Philip Keipto Chemwolo and the Mumias Sugar Company Limited had applied to set aside a judgment by default entered for the plaintiff, Mr Augustine Kubende on February 27, 1984. The Defendants had not appeared before an interlocutory judgment was entered under Order 9A rule 5 of the Civil Procedure Rules, but they did appear before assessment of damages.
The chronological order of events appears to have been that the motor vehicle accident in which the Plaintiff was seriously injured occurred on June 14, 1982. At the time, the Plaintiff was riding a motor-cycle, while Mr Chemwolo was driving a motor vehicle in the course of his employment with the Mumias Sugar Company Limited. There was affidavit to the effect that on August …