REPUBLIC OF KENYA
IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT
AT OGEMBO
CIVIL SUIT NO. E082 OF 2021
ISABELLA KERONGO………………………………………….JUDGEMENT CREDITOR
VERSUS
TIMOTHY CHOTI ONCHOKE…………………………….......JUDGEMENT DEBTOR
REPLYING AFFIDAVIT
I Omagwa Angima of P.O. Box 208 50200 BUNGOMA make oath and state as
follows;
1. That I am an advocate of the High Court of Kenya in conduct of this
matter for the plaintiff/ respondent and well versed with the matters
raised in the defendant’s application and which are within my ambit.
2. That I have read and understood the application of the defendant and
carefully noted the contents of his supporting affidavit.
3. That the first thing to remark about the application is that his casualness
is evident!
4. That there is an affidavit of service on record and he does not deny or
question its contents or the veracity thereof on summons to enter
appearance.
5. That the applicant has also not denied that he was served with a notice
to show cause which he failed to honour leading to his arrest nor has
questioned the affidavit of service on record in respect thereto.
6. That it is not enough to simply claim that he was not served now that he
has been brought under arrest and clearly such denial is conveniently
made to escape the dire consequences of his failure to attend to the
summons of the court.
7. That for the court to exercise its discretion and grant him the prayer to
set aside the exparte judgement herein, he must demonstrate that he
was in truth not served and a mere denial cannot suffice.
8. That having not questioned or denied the veracity of the affidavits of
service on record, a mere statement that he was not served cannot
suffice to disturb a judgment that was regularly entered!
9. That we invite the court note from the record that the first mode of
execution issued against the defendant was by attachment of his
movable property and the auctioneer who was tasked to execute the
attachment simply disappeared and did not even make any returns.
10. That we further invite the court to take judicial notice of the fact
that when auctioneers disappear without explanation while, it is most
likely because the judgement debtor has compromised them.
11. That above all and most importantly, though he might have
succeeded in putting off the auctioneers, he should have used the
opportunity to appear and apply and set aside the exparte judgement.
12. That the judgement debtor instead decided to ignore the case
entirely either out of defiance or impudence or for whatever other reason.
13. That let the court note that the judgement debtor was arrested not
from his present work station but from his place of business where he
permanently resident at Kiango which also happens to his place of
business and residence and where the cause of action arose and not
Homa Bay where he is allegedly stationed.
14. That the plaintiff came to seek justice and deserves to have her
case treated with the seriousness it deserves.
15. That although the court has the discretion to set aside an exparte
judgement, it is the law that such discretion should be judiciously
exercised on sound grounds and not capriciously.
16. That let the court note that the defendant has so far blatantly been
dismissive of the court process and he should not be treated with kids
gloves and allowed to get away with it.
17. That in the circumstances, the application to set aside the exparte
judgement herein should be dismissed with costs and execution against
the defendant allowed to proceed.
18. That should the court allow the application, then the plaintiff will be
asking that the defendant be ordered to deposit the entire decretal sum
as security.
19. That the contents of this affidavit are true to the best of my
knowledged and belief.
Sworn this 2nd day of October 2024
By the said Omagwa Angima
Before Me
Commissioner of Oaths
DRAWN AND FILED BY:
OMAGWA ANGIMA & CO.
ADVOCATES,
P.O. BOX 208-50200
BUNGOMA.
omagwangimadvocates@gmail.com
TO BE SERVED UPON:
MOKAYA J.M. LAW ADVOCATES
HOSPITAL ROAD,
AT SAFARICOM CARE CENTRE KISII 3RD FLOOR,
KISII.
geffonchoke@gmail.com
