https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9191

A. Thuo Kanai Advocates v Cannon Assurance Ltd (Miscellaneous Application 85 of 2019) [2026] KEHC 9191 (KLR) (Commercial and Tax) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 9191 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application 85 of 2019 MO Ado, J June 18, 2026 Between A. Thuo Kanai Advocates Applicant and Cannon Assurance Limited Respondent Ruling Introduction 1.Before the court is the Client's Notice of Motion dated 20 March 2025 seeking the following substantive orders:i.That the judgment entered on 11 March 2025 be set aside.ii.That the Client be granted leave to file a replying affidavit in response to the Advocate's application dated 27 September 2024.iii.That the costs of the application be provided for. 2.The application is supported by the grounds appearing on its face and the supporting affidavit sworn on behalf of the Client. The Client's Case 3.The application is premised on the fact that the Advocate's application dated 27 September 2024 sought judgment for taxed costs in the sum of Kshs. 56,692 together with interest at the rate of 14% per annum from 14 February 2013. 4.The Client contends that it had instructed its advocates to oppose the application on the basis that the court in ELC No. 162 of 2015 had found on 30 January 2020 that no advocate-client relationship existed between the parties. 5.The Client further contends that the claim for interest at the rate of 14% per annum from 14 February 2013 was untenable as the date claimed preceded the taxation of the Advocate-Client Bill of Costs by approximately ten years. 6.According to the Client, its advocates inadvertently failed to file a replying affidavit despite directions issued by the Deputy Registrar on 21 November 2024, with the result that the application dated 27 September 2024 was allowed as unopposed and judgment entered in favour of the Advocate. 7.The Client maintains that no prejudice will be occasioned to the Advocate if the judgment is set aside and that it ought to be afforded an opportunity to be heard on the merits of the application dated 27 September 2024. 8.It is further contended that the application was brought without undue delay and that it is in the interests of justice that the Client be allowed to ventilate its case. The Advocate's Response 9.The application is opposed through a replying affidavit sworn by Anthony Thuo Kanai on 11 December 2025. 10.The Advocate contends that the application is incompetent as it fails to satisfy the requirements of Order 42 Rule 6 of the Civil Procedure Rules, there being no appeal filed to anchor the prayer for stay of execution. 11.He deposes that the Client had previously issued a cheque for Kshs. 345,526 in settlement of the decretal amount in this matter and two related matters, but subsequently instructed its bank to dishonour the cheque after it had been deposited. 12.According to the Advocate, such conduct disentitles the Client from obtaining equitable relief and demonstrates bad faith. 13.The Advocate further states that the orders made on 11 March 2025 were entered by consent after counsel for the Client appeared before the court, indicated that no replying affidavit would be filed and consented to the application dated 27 September 2024 being allowed. 14.He argues that counsel had ostensible authority to bind the Client and that no evidence of fraud, collusion, mistake or any other ground capable of warranting the setting aside of a consent order has been demonstrated. 15.The Advocate further states that the Client was duly served with the application dated 27 September 2024 and failed to file a replying affidavit for approximately four months despite directions having been issued by the Deputy Registrar. 16.It is his position that the allegation that the consent was entered inadvertently is unsupported, particularly because the advocate who appeared in court on behalf of the Client has not sworn any affidavit explaining the circumstances under which the consent was recorded. 17.The Advocate further contends that the Client has no arguable defence to the application dated 27 September 2024 because the Advocate-Client Bill of Costs dated 9 February 2019 was taxed at Kshs. 56,692 and a Certificate of Taxation issued on 8 January 2023, which certificate has neither been set aside nor varied. 18.He further states that all challenges relating to the existence of an advocate-client relationship and the taxation proceedings have previously been heard and determined, including the dismissal of the Client's objection and reference applications. 19.According to the Advocate, the issue of retainer has been conclusively determined in prior proceedings and is therefore res judicata. 20.He contends that the Client has exhausted all legal avenues available to challenge the Certificate of Taxation and is merely filing unmeritorious applications intended to delay payment of legal fees that have remained outstanding for over twelve years. 21.The Advocate also denies the allegation that there existed an agreement to stay proceedings pending the determination of an appeal in ELC Miscellaneous Application No. 162 of 2015, stating that no evidence of such an agreement has been produced. 22.Finally, he maintains that he is entitled to interest at the rate of 14% per annum under Rule 7 of the Advocates Remuneration Order, having served a fee note on 14 January 2013 notifying the Client that the fees would attract interest at that rate. 23.He therefore urges the court to dismiss the application with costs. Analysis and Determination 24.I have considered the application, the affidavits filed by the parties and their respective written submissions dated 18 December 2025 and 16 January 2026. 25.The issue falling for determination is whether the Client has established sufficient grounds to warrant the setting aside of the judgment entered on 11 March 2025. 26.The record shows that the Advocate filed an application dated 27 September 2024 seeking judgment for taxed costs in the sum of Kshs. 56,692 together with interest at the rate of 14% per annum. 27.It is not disputed that on 11 March 2025, counsel appearing for the Client informed the court that no replying affidavit would be filed and consented to the application being allowed as prayed. Consequently, judgment was entered in favour of the Advocate. 28.The Client now seeks to set aside that judgment on the basis that its advocate inadvertently consented to the application being allowed. 29.The law governing the setting aside of consent judgments is well settled. In Flora N. Wasike v Destimo Wamboko [1988] eKLR, the Court of Appeal stated:“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them ... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court ... or if the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement." 30.Likewise, in Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266, the court held that:“A court cannot interfere with a consent judgment except in such circumstances as would afford good grounds for varying or rescinding a contract between the parties." 31.The Court of Appeal reaffirmed these principles in Hirani v Kassam [1952] 19 EACA 131, where it held that a consent judgment may only be interfered with on grounds that would justify setting aside a contract. 32.In Didacus Omokola & 2 Others v Municipal Council of Mombasa & 3 Others [2000] eKLR, the court stated:“I am bound to hold that even if the express authority pleaded by the advocate is doubted, there was ostensible authority to compromise the suit by signing the consent as the advocate acting for the plaintiffs. He was the advocate on record. The only way a consent may be interfered with is if the grounds stated in the first holding in the Wasike case are proved." 33.These authorities establish that a consent order is not lightly disturbed. A party seeking to impeach such an order bears the burden of placing before the court cogent evidence demonstrating fraud, collusion, mistake, misrepresentation, lack of material facts or any other circumstance that would justify setting aside an agreement. 34.In the present case, the sole explanation advanced by the Client is that its advocate inadvertently consented to the application dated 27 September 2024 being allowed. 35.However, the advocate who appeared before the court on 11 March 2025 and allegedly made the inadvertent concession has not sworn an affidavit explaining the circumstances under which the consent was recorded. 36.The allegation of inadvertence therefore remains a bare assertion unsupported by evidence. 37.Further, the Client has not produced any material demonstrating that it had expressly instructed its advocate not to record the consent or that the advocate acted outside the scope of his authority. 38.In the absence of such evidence, the court must presume that counsel appearing on record acted within his ostensible authority and was duly authorized to bind the Client. 39.The Client has raised issues concerning the existence of an advocate-client relationship, the findings rendered in ELC No. 162 of 2015 and the propriety of awarding interest at the rate of 14% per annum under Rule 7 of the Advocates Remuneration Order. 40.Those issues, however, go to the merits of the application dated 27 September 2024 and cannot be reopened unless the consent judgment entered on 11 March 2025 is first successfully impeached. 41.Having failed to establish any of the recognized grounds for setting aside a consent judgment, the Client has not laid any basis for this court to revisit the orders made on 11 March 2025. 42.I therefore find that the Notice of Motion dated 20 March 2025 is devoid of merit and is hereby dismissed with costs to the Advocate, assessed at Kshs. 50,000/-. 43.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the Presence of:Moses C/AThuo………………for the AdvocateWambugu……………for the Client