https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2988

KN Mburu & Associates Advocates v Gicho (Environment and Land Miscellaneous Application E021 of 2022) [2026] KEELC 2988 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2988 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Application E021 of 2022 MN Kullow, J May 14, 2026 Between KN Mburu & Associates Advocates Applicant and Moses Githiri Gicho Respondent Ruling Introduction 1.The Applicant/ has filed the notice of motion application dated 26th May 2025 seeking for the following ordersi.Spentii.That this honourable court be pleased to issue an order of stay of the judgement entered herein pending the hearing and determination of this application.iii.That this honourable court be pleased to review and set-aside the ex-parte judgement entered herein and allow this matter to be heard and determined on its merit.iv.That this honourable court be pleased to order that the reference on the taxed costs to be heard and determined first before any other or further orders herein. 2.The application was premised on grounds as in the supporting affidavit of Mwaniki Gachomo on grounds that the court had entered judgement as against the respondent which judgement had not been served as against therespondent’s advocate who was in the process of challenging the taxed bill of costs hence this application for stay of the said judgement 3.The respondent/applicant filed a replying affidavit sworn by Grace Waringa Muingai on the 18th June 2025.She deponded that the respondent herein had represented the applicant in a conveyance transaction and failed to pay the legal fees prompting the respondent to file a bill of costs which was determined on the 20th March 2024 awarding the respondent Ksh 2, 035,000/=.That the applicant herein was informed of the said order via WhatsApp and email but has failed to pay up prompting the application to have the said award adopted as for judgement. 4.She further deponed that the applicant had not taken any necessary steps to have any reference filed disputing the award neither had they filed any appeal and hence no proof of any substantial loss to be occasioned by them to warrant stay of execution. That the delay since the delivery of the ruling on the bill of costs had been 15 months which delay the respondent indicated to be inordinate. 5.Counsel submitted that the applicant cannot claim not to have been served yet there is proof of notices to the advocates of on record hence knowledge of the proceedings leading up to the judgement 6.The court directed the application to be canvassed by way of written submissions. The applicant /respondent filed submissions dated 10th April 2026 whereas the respondent/applicant filed submissions dated 2nd December 2025 Applicant’s submissions. 7.Counsel submitted that the respondent failed to serve the application for judgement dated 27th November 2024 on the respondent’s counsel and instead served the client contravening the provisions of order 5 rule 8 of the civil procedure rules that authorize service on the duly authorized agent of the client necessitating the setting aside of the ex parte judgment. Counsel relied on the case of Patel v EA Cargo Handling services Ltd (1974) EA 75 8.The respondent in his submissions indicated that the application was a delaying tactic on the applicant’s side being that the applicant lost interest in the matter since the filing of the application on the 26th May 2025.That further service was effected to the applicant and cannot claim non-service on the basis that the advocates were not served Analysis and Determination 9.The only issue for determination having gone through the application is whether the application is merited. The applicant’s contention is that the respondent did not serve the application seeking for judgement on his duly recognized agent being the advocates on record and hence was not able to defend the same despite there being an objection to the taxed bill of costs that led to the judgement. 10.The respondent on the other hand indicates that service was effected on the client which is effective service and that the applicant since filing for the letter objecting to the taxed bill of costs had never taken up initiative to follow through to file a reference to the bill and that this application is a delaying tactic.I have perused the documents attached by the respondent pointing to the fact that service was effected .The Respondent has annexed to their Replying Affidavit dated 18th June 2025 a screenshot of a WhatsApp conversation and an email purportedly sent to the phone number and email address belonging to the client that is the respondent herein to point to the fact that the application dated 27th November 2024 was served .There is an affidavit of service on record sworn by one Jennifer Maina a licensed Court Process Server. The Affidavit indicates that the Process-Server served the mention notice and application seeking judgement via WhatsApp Number being +254722510073 where she indicates there was an acknowledgment of receipt evidenced by a show of grey double ticks. She further deponed that she confirmed the phone number was registered in the client’s name by sending funds to the number to confirm the registered owner.Therefore, prima facie there is evidence that the Applicant was properly served as required by law and he had the duty to inform his advocate on record about the said documents. This Affidavit of Service has not been controverted in any way. Moreover, it is highly unlikely that the Hon. Deputy Registrar would have proceeded with the adoption of the award as judgement Ex parte unless she had first satisfied herself on this crucial issue of service. Therefore, on this question of service I find that despite the Applicant assertions to the contrary there is clear evidence that he was duly served with the application for judgement and mention notice. 11.On the issue of stay of execution, there has to be a valid appeal on record on which the order of stay must be anchored on neither has the applicant filed any reference challenging the taxing master’s decision. There being no valid appeal , the provisions for grant of orders of stay as in order 42 rule 6 cannot apply . Final disposition 12.The upshot of the matter is that the Application is disposed in the following terms:i.The Notice of Motion application dated 26th May 2024 is without merit and is hereby dismissed.ii.Costs to the Respondent.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 14TH DAY OF MAY 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Gachoma - for the ApplicantMs. Muigai - for the RespondentPhilomena W - Court Assistant