https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11353

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION CORAM: F. MUGAMBI, J COMM MISC APPLN NO. E539 OF 2021 BETWEEN GRACE MUMBI GITHAIGA …………….…………… 1ST APPLICANT GITHAIGA JOYCE NJERI APPLICANT LEVNEL ENTERPRISES LIMITED ………………… 3RD APPLICANT …………………………… 2ND VERSUS GEOFFREY E. WESONGA T/A WESONGA, MUTEMBEI & KIGEN ADVOCATES .. RESPONDENT RULING Introduction and Background 1. This ruling determines the applications dated 18th March 2026 and 22nd April 2026. Both applications principally seek to arrest the enforcement of a Ruling delivered on 18th May 2023 converting a taxed Certificate of Costs dated 5th April 2018 into HCCCOMMISC E539 OF 2021 RULING Page 1 a Judgment in favour of the Respondent Advocate, and to reopen for hearing on the merits proceedings which the Applicants contend were conducted without their knowledge. It is further urged that the 1st Applicant is unemployed and has a young family that would be prejudiced if the execution were to issue. 2. The Respondent opposes both applications through a Replying Affidavit sworn by GEOFFREY E. WESONGA on 13th May 2026 and written submissions dated 1st July 2026. The Respondent urges the Court to dismiss the applications with costs on the footing that the impugned Ruling was regularly obtained after due and lawful substituted service, that the applications offend the doctrine of finality prescribed for taxed costs and that some of the prayers sought have in any event been overtaken by the effluxion of a conditional order of this Court. 3. The case presented by the Respondent is that the Respondent had formerly acted for the Applicants as their instructed Advocate. Upon conclusion of that retainer, the Respondent caused an HCCCOMMISC E539 OF 2021 RULING Page 2 Advocate/Client Bill of Costs dated 28th July 2017 to be taxed, resulting in a Certificate of Costs dated 5th April 2018. It is common ground that no reference was thereafter filed against the taxing officer's decision under paragraph 11 of the Advocates Remuneration Order (the ARO). 4. The Respondent avers that having been unable to trace the 1st Applicant for personal service of the application seeking to convert the Certificate of Costs into a Judgment, obtained leave of this Court on 6th March 2023 to effect substituted service, which service was thereafter effected by way of advertisement in the Standard Newspaper of 12th May 2023. The application proceeded unopposed and culminated in the Ruling of 18th May 2023, by which judgment was issued in the sum of Kshs.1,843,173.86. 5. Following the Respondent's attempts to execute the resultant decree and upon service of a Letter of Attachment dated 6th March 2026, the 1st Applicant moved the Court vide the Notice of Motion dated 18th March 2026 seeking to set aside the Ruling of 18th May 2023 and all consequential orders, leave HCCCOMMISC E539 OF 2021 RULING Page 3 to respond to the Bill of Costs and for a stay of execution pending the hearing of the application. The Court allowed the interim stay coupled with a conditional order requiring deposit of security in the sum of Kshs.3,908,368.00. 6. The Applicants having failed to comply with the conditions attaching to that interim stay within the stipulated thirty (30) days, the 1st Applicant returned to Court by way of the Notice of Motion dated 22nd April 2026 seeking an extension of forty-five (45) days to deposit the ordered security, or in the alternative a reduction of the sum together with a further stay of execution pending compliance. 7. On 2nd June 2026 this Court granted a further and final extension of fourteen (14) days for deposit of the decretal sum into a joint interest-earning account held by the two firms of advocates, expressly providing that the stay of execution then subsisting would lapse automatically upon non- compliance. It is not disputed that the Applicants did not comply with that conditional order within the extended period. HCCCOMMISC E539 OF 2021 RULING Page 4 Analysis and Determination 8. I have carefully considered the two applications, the supporting and opposing affidavits and the rival written submissions of the parties. Before I proceed further, it is imperative to note that the issues touching on security and stay of execution are spent and not for determination at this point. I say so noting that the extension order in question which allowed 14 days for the security to be deposited was unambiguous as to consequence. It provided that non-compliance would occasion automatic lapse of the subsisting stay. Once the 14-day period lapsed without compliance, the stay fell away by operation of its own terms. 9. That said, the next issue is whether the service upon the Applicants was indeed irregular as alleged. Order 5 Rule 17(1) of the Civil Procedure Rules permits the Court, on being satisfied that for any reason summons cannot be served in the ordinary manner, to order service by such substituted means as it considers just including by advertisement in a newspaper of wide circulation. Sub-rule (2) thereof deems service so HCCCOMMISC E539 OF 2021 RULING Page 5 effected ‘as effectual as if it had been made on the defendant personally’. It is clear from the Civil Procedure Rules that an order for substituted service may also apply in other circumstances and not just in the case of summons. 10. Order 5 Rule 17(1) presupposes an anterior application made on notice to no one but supported by evidence upon which the Court forms an independent judicial view that personal service has become impracticable. Such was the position in this case as the application was made on 1st February 2023 and allowed on 18th April 2023. The evidence on record confirms that notice was issued vide an advertisement in the Standard Newspaper of Friday, May 12, 2023. 11. The Ruling of 18th May 2023 was therefore not entered upon a failure to serve notice, but after compliance with an order on substituted service, which order has neither been appealed nor set aside. By virtue of Order 5 Rule 17(2), that service is deemed as effectual as personal service and the resultant Ruling is accordingly a regular one. Its disturbance falls to be governed by the HCCCOMMISC E539 OF 2021 RULING Page 6 discretionary principles articulated in Mbogo & Another V Shah, [1968] EA 93, to the effect that the discretion to set aside such an order is intended: from “to avoid injustice or hardship accident, resulting or excusable inadvertence, is mistake or error, and emphatically not designed to assist a party who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 12. I am unable to find that the substituted service effected upon the 1st Applicant discloses such accident, inadvertence or excusable mistake contemplated in Shah V Mbogo [supra], or that the Applicants have raised a triable issue of the kind contemplated in Patel V E.A. Cargo Handling Services Ltd, [supra]. The Applicant does not mention how they eventually became aware of the proceedings. A collateral attack on the propriety of the order of 6th March 2023, mounted for the first time nearly 3 years later and after Judgment had already been entered and HCCCOMMISC E539 OF 2021 RULING Page 7 partly enforced, is not the proper province of an application to set aside the subsequent Ruling. It was and remains, the province of an appeal against, or a timeous application to set aside that earlier order, neither of which was pursued. 13. Moreover, the Applicants' own submissions concede that the 1st Applicant was aware at the very latest, of the taxation proceedings of 2017. No explanation is given as to why the Applicants did not participate or thereafter file any reference challenging the taxation. Equally, no explanation is given for the non-payment of the certified sum. Conduct of this character sustained over a period of almost 10 years, is more consistent with a deliberate avoidance of an unwelcome financial obligation than with the accident or excusable mistake that the doctrine in Shah V Mbogo, [supra] is designed to remedy. 14. The right to be heard upon which the Applicants place substantial reliance, presupposes an absence of service. It does not avail a defense to a party who was served in a manner sanctioned by law and who thereafter failed to respond, for such a HCCCOMMISC E539 OF 2021 RULING Page 8 party has already had the process of the Court brought to her attention in the manner the law prescribes. The Applicant’s reliance on Articles 50 and 159 of the Constitution is equally unconvincing. In Odinga & 5 Others V Independent Electoral and Boundaries Commission & 3 Others, Petition No. 5, 3 & 4 of 2013 (Consolidated), [2013] eKLR, KESC 6 (KLR) the Supreme Court held that Article 159(2) (d) is applicable on a case-by-case basis and is not a panacea for every procedural shortfall a litigant may commit. 15. In any case, even measured against the threshold pronounced by the Supreme Court in Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 Others, Application No. 16 of 2014, [2014] eKLR the balance tilts decisively against the Applicants. The taxation in question dates back to 2017 and no reference was ever filed against it. The certificate of costs was never impugned within the time or manner prescribed by law, the substituted service Order of 6th March 2023 was neither appealed against nor set aside. The HCCCOMMISC E539 OF 2021 RULING Page 9 conditional stay granted as recently as 2nd June 2026, itself already a second indulgence following the earlier application of 22nd April 2026 was allowed to lapse without compliance or explanation. 16. No satisfactory reason for any of these successive omissions has been placed before the Court. Equally, no urgency attended the eventual challenge beyond the imminence of execution, and the Respondent who has awaited payment of professional fees taxed nearly a decade ago, would suffer real and continuing prejudice were the matter to be reopened. 17. Finally, as to whether the Certificate of Taxation can be reopened at this juncture, Section 51(2) of the Advocates Act provides that the certificate of a taxing officer, unless set aside or altered by the Court, is ‘final as to the amount of the costs covered thereby’, and empowers the Court to enter Judgment for the certified sum where the retainer is not in dispute. 18. This position was authoritatively restated by this Court (Kamau J) in Lubulellah & Associates HCCCOMMISC E539 OF 2021 RULING Page 10 Advocates V N K Brothers Limited, [2014] KEHC 8685 (KLR) where the Learned Judge held that once a taxing master has issued a certificate of costs and no reference has been filed or determined against it: “… no other action would be required from the court save to enter judgment for the certified sum, since an applicant seeking to recover taxed costs is under no obligation to institute a substantive suit for that purpose.” 19. From the record before me, the certificate of costs dated 5th April 2018 has at no point been the subject of a reference under paragraph 11 of the ARO and has not been set aside or altered. In those circumstances, and applying the principle in Lubulellah & Associates Advocates V N.K. Brothers Limited (supra), the certificate is final. This Court, has no proper basis to reopen the quantum or propriety of the taxation through the present applications. HCCCOMMISC E539 OF 2021 RULING Page 11 Disposition 20. For the foregoing reasons, the Notice of Motion dated 18th March 2026 and 22nd April 2026 are without merit. They are both dismissed with costs and the interim orders issued are hereby vacated. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24 TH DAY OF JULY 2026. F. MUGAMBI JUDGE Delivered in presence of: Wesonga for DH/respondent Court Assistant: Lillian HCCCOMMISC E539 OF 2021 RULING Page 12