https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12837

**Republic of Kenya** **In the High Court of Kenya at Mombasa** **Civil Suit No. E135 of 2023 (OS)** **PHIDELIS NZALU WAMBUA.................................................... CLIENT/RESPONDENT** **-VERSUS-** **MBURU KARIUKI & COMPANY ADVOCATES ............ ADVOCATES/APPLICANT** **RULING** **Introduction** 1. Before the court is the notice of motion dated 17th July 2025 taken out by the advocates, Mburu Kariuki & Company Advocates, against their former client, Phidelis Nzalu Wambua. In the originating summons that founds these proceedings the Client is the plaintiff/applicant and the Advocates are the defendant/respondent; in the present application those roles are reversed. To avoid confusion I shall throughout refer to the parties simply as “the Advocates” and “the Client.” 2. The application is expressed to be brought under sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and all enabling provisions of the law. Shorn of the spent prayer for certification of urgency and the prayer for costs, it seeks two substantive orders: (a) that the court review, vary and/or set aside its orders of 14th July 2025 which fixed a ruling date of 24th October 2025 on the basis only of the material filed as at 14th July 2025, and which, the Advocates say, effectively locked out their response to the Client’s application for accounts; and (b) that, on the basis of the certificates of costs filed together with the application, the court find that the Client’s application for accounts is spent. 1. The application is supported by the affidavit of Gloria Nduku, the advocate having conduct of the matter for the Advocates, sworn on 17th July 2025, and by the grounds set out on the face of the motion. It is opposed by the Client, who appears in person and who has filed written submissions dated 10th November 2025. The Advocates have filed submissions dated 10th December 2025. I have considered the application, the supporting affidavit and its annextures, and the rival submissions. **Background** 1. The background is necessary to place the application in its proper context. The Client instructed the Advocates to pursue a claim for damages arising out of a road accident of 21st November 2017 in which he was injured while a fare-paying passenger aboard a motor tricycle. The Advocates filed SRMCC No. 1874 of 2018 (Phidelis Nzalu Wambua v Andrew Njeru Nyenyi) against the owner of the tricycle, and on 4th March 2021 judgment was entered in the Client’s favour for Kshs 400,000/= in general damages and Kshs 2,000/= in special damages, together with costs and interest. 2. The judgment debtor proving unable to satisfy the decree, the Advocates pursued the insurer by way of a declaratory suit, CMCC No. 1578 of 2022 (Phidelis Nzalu Wambua v Monarch Insurance Company Ltd), which succeeded. In consequence, Monarch Insurance Company Ltd paid to the Advocates the sum of Kshs 773,942/=. Of that sum the Advocates remitted Kshs 245,340 to the Client by a cheque dated 18th May 2023, which the Client acknowledged receiving. 3. The Client, contending that he had been short-changed and was entitled to a further Kshs 528,602 together with costs and interest, took out the originating summons dated 24th May 2023. By that summons, brought under Order 52 Rule 4 of the Civil Procedure Rules, the Client sought, among other things, delivery by the Advocates of a cash account of the monies received on his behalf, a list of monies in the Advocates’ possession or control, delivery up of papers and documents, and payment of the balance he claims to be owed. 4. The Advocates’ initial response was a preliminary objection to the effect that the application for accounts was premature because the advocate/client bills of costs had not yet been filed or taxed. The Advocates thereafter filed and prosecuted two advocate/client bills of costs — HCMISC APP No. E072 of 2023 (arising from SRMCC No. 1874 of 2018) and HCMISC APP No. E073 of 2023 (arising from CMCC No. 1578 of 2022). Those bills were taxed by the Deputy Registrar: the bill in E072 was taxed and certified at Kshs 276,386 and the bill in E073 at Kshs 224,150, as appears from the two certificates of costs (annextures “GN a” and “GN b”), both bearing the taxation date of 3rd February 2025 and an issue date of 16th July 2025. 5. It is common ground that when the matter came up on 14th July 2025 the Advocates had not yet placed the signed certificates of costs on the record. On that date the court fixed a ruling on the originating summons for 24th October 2025 and directed that the ruling would be made on the basis of the material on record as at 14th July 2025. It is that direction which precipitated the present application. The Advocates say it shut them out from placing before the court the certificates of costs — which had by then been taxed but not yet issued in signed form, and which they contend are decisive of the very question the originating summons raises. **The advocates’ case** 1. The gravamen of the Advocates’ case, as deposed by Gloria Nduku and developed in submissions, is this. The omission of the certificates of costs on 14th July 2025 was not deliberate. Although the two bills had been taxed (the taxation being dated 3rd February 2025), the signed certificates could not reasonably have been available on or before that date because they had not yet been signed by the Deputy Registrar; indeed they bear the issue date of 16th July 2025. The delay was compounded, it is said, by the fact that the taxation ruling was uploaded to the court’s system in illegible handwritten form and without notice to the Advocates, who learnt of it only through the tracking system. The Advocates moved promptly, filing this application on 17th July 2025 — one day after the certificates were issued and three days after the impugned order. 2. On the substance, the Advocates contend that the certificates of costs dispose of the originating summons. On their arithmetic, the two taxed bills together (Kshs 276,386 and Kshs 224,150) amount to Kshs 500,536; when added to the Kshs 245,340 already paid to the Client, the Advocates’ lawful entitlement and payments account for Kshs 745,876 of the Kshs 773,942 received, leaving a balance of some Kshs 28,066 which, they say, is in any event insufficient to meet the value added tax exigible on the taxed costs. On that footing they submit there is no money due to the Client, that his summons is an afterthought, frivolous and an abuse of process, and they rely on Invesco Assurance Co. Ltd v V.W. Maina T/A V.W. Maina & Company Advocates, Mombasa Misc. Civil Application No. 26 of 2014 (OS), for the proposition that a client cannot file a separate suit to recover money in an attempt to bypass the taxation process, the amount due being determined only after taxation. **The client’s case** 1. The Client, appearing in person, resists the application. His central contention is procedural. He submits that he served the originating summons upon the Advocates on or about 25th May 2023; that the Advocates failed to enter appearance or file any response within time; that he thereupon requested judgment on 16th June 2023 and that judgment was entered against the Advocates on 19th June 2023; and that the Advocates’ preliminary objection, and now this application, come far too late — this application, he points out, having been filed on 17th July 2025, more than one year and six months after 19th June 2023. He invites the court to approach the matter as an application to set aside judgment, and to weigh the absence of a defence on the merits, the want of any reply to the summons, the prejudice to him, and the inordinate and unexplained delay. 2. On the merits the Client maintains that the fee agreed between the parties was 30% of the sum recovered, which on the total of Kshs 773,942 would be Kshs 232,182.60, and that the Advocates have failed to account to him for the balance. He relies on Kim Jong Kyu v Housing Finance Company Ltd, Kanyi & Company Advocates and Kinoti & Company Advocates, Court of Appeal at Mombasa Civil Appeal No. 19 of 2015, for the proposition that an advocate’s failure to account for funds held on a client’s behalf is a grave dereliction of the advocate’s duty. He prays that the application be dismissed with costs and that the court take action against the Advocates for failing to account. **Issues for determination** 1. Having considered the rival positions, the issues that fall for determination are, in my view, these: (a) whether the court should review, vary or set aside its direction of 14th July 2025 so as to admit onto the record the certificates of costs before the originating summons is determined; (b) whether the court should, at this stage, find the originating summons for accounts to be spent; and (c) costs. **Analysis and determination** **(a) Whether to review the direction of 14th July 2025 and admit the certificates of costs** 1. I begin with the nature of what is sought. The order of 14th July 2025 was not a judgment or a decree. It was an interlocutory case-management direction which reserved a ruling on the originating summons and confined the material to be considered to that on record as at that date. The relief the Advocates seek is that the court reopen that direction so that the certificates of costs may be considered before it rules. 2. Although the application invokes Order 45 Rule 1 and section 80 of the Civil Procedure Act, the power to grant the relief sought does not rest on the technical requirements of formal review alone. A court is not functus officio in respect of its own interlocutory directions before it has delivered its final ruling, and it retains, under sections 1A, 1B and 3A of the Civil Procedure Act and its inherent jurisdiction, ample power to revisit such a direction where to leave it undisturbed would defeat the ends of justice. The overriding objective enjoins the court to facilitate the just determination of the proceedings; and a just determination is not served by the court deliberately blinding itself to material central to the very question before it. I therefore approach the application as one which, in substance, asks the court to correct an interlocutory direction so as to enable a just determination of the summons on a complete record — a matter squarely within the court’s competence whether the label be review under Order 45 or the exercise of inherent jurisdiction. 3. Even were the matter tested against the requirements of review, the Advocates are, in my judgment, within them. Review lies, among other grounds, upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced when the order was made, and for any other sufficient reason. The certificates of costs answer that description. The taxation from which they issue was not reduced to signed, sealed certificates until 16th July 2025 — after the impugned direction of 14th July 2025. A document that does not yet exist in issued form cannot be placed on the record, and the Advocates can hardly be faulted for failing to produce on 14th July what the Deputy Registrar issued only on 16th July. The explanation for the certificates’ absence is therefore credible and complete, and the application to bring them in was made without any delay at all — three days after the order and a day after the certificates issued. 4. The materiality of the certificates is not in doubt. The originating summons is, at bottom, a claim that the Advocates hold, and have failed to account for, money due to the Client. Whether any sum is due to him cannot be answered without knowing three figures: what the Advocates received, what they paid over, and what they are lawfully entitled to retain as their costs. The first two are not in dispute — Kshs 773,942 received and Kshs 245,340 paid. The third is fixed neither by the Client’s assertion of a 30% fee agreement nor by the Advocates’ own say-so, but by taxation; and it is the certificates of costs that embody the taxed figures of Kshs 276,386 and Kshs 224,150. To determine the summons without the certificates would be to take an account with one of its three essential entries missing. That cannot be right. 5. I am fortified in this view by the very consideration the Client presses upon me. He invokes, and rightly, the advocate’s fiduciary duty to account to the client for money received on the client’s behalf. But the taking of a true and transparent account is precisely what the admission of the certificates makes possible. The certificates do not foreclose the Client’s complaint; they supply the yardstick against which it must be measured. A ruling that purported to decide whether the Advocates have properly accounted, while excluding the taxed figure of their entitlement, would serve neither party’s interest in a just result. 6. It remains to address the Client’s principal objection: that the application is, in truth, a belated attempt to set aside a judgment entered on 19th June 2023, brought more than a year and a half out of time. I am not persuaded that this defeats the application, for two reasons. First, the premise is doubtful on the material before me. An originating summons is not determined by default in the manner of a plaint; it is heard and determined on affidavit evidence. That the matter came up on 14th July 2025 and the court reserved a ruling for 24th October 2025 is difficult to reconcile with the notion that a final judgment on the summons had already been entered in June 2023 — for had it been, there would have been nothing left upon which to reserve a ruling. What appears more likely is that any step taken in June 2023 was directed at the default machinery contemplated by prayer 5 of the summons rather than a concluded adjudication of it; but I need not, and do not, finally determine that question here. Second, and in any event, the order the present application impugns is not any judgment of June 2023 but the direction of 14th July 2025 — and against that direction the application was brought within three days. The delay of which the Client complains is therefore beside the point of the relief now sought. 7. For these reasons I am satisfied that it would be contrary to the overriding objective, and productive of injustice, to determine the originating summons on a record from which the certificates of costs are excluded. I will accordingly set aside so much of the direction of 14th July 2025 as confined the ruling to the material on record as at that date, and admit the certificates of costs and the taxation rulings onto the record. **(b) Whether the originating summons is spent** 1. The Advocates go further and ask the court to find, now, that the originating summons for accounts is spent. I decline to go so far at this stage, and I do so deliberately. 2. To pronounce the summons spent would be to determine it — and to determine it, moreover, in an interlocutory ruling on the Advocates’ own application, without the Client having had the fair opportunity to meet the case on its merits that the substantive hearing of the summons is meant to afford him. The Client is a litigant in person, and fairness demands that the central questions — whether, on the full record now available, any balance remains due to him; whether the fee he says was agreed can displace the taxed costs; and whether, as the Advocates contend, the summons is in any event an impermissible attempt to reagitate by separate process what taxation and the execution court have already settled — be resolved in the reserved ruling on the summons, on the full record and after both sides have been heard, and not pre-empted here. 3. I say only this much, by way of guidance to the parties. The matters the Advocates raise are weighty and will require to be met. The authority in Invesco v V.W. Maina, that a client may not ordinarily mount a separate suit to bypass taxation because the sum properly due is fixed by taxation, together with the related provisions of section 51(2) of the Advocates Act (the finality of a certificate of costs unless set aside or altered by the court) and section 34 of the Civil Procedure Act (that questions touching the satisfaction of a decree lie in the court executing the decree and not in a fresh suit), are directly engaged by the shape of this dispute and will fall to be considered on the merits. Equally, the arithmetic the Advocates advance — that the taxed costs together with the sum already paid substantially exhaust the monies received — will require to be tested against the Client’s own account. These are matters for the substantive ruling, which will now be made upon the complete record. **(c) Costs** 1. As to costs, this application has, in the result, done no more than restore to the record material that ought to be before the court when it determines the summons, and correct a case-management direction to that end. In those circumstances the just order is that the costs of the application abide the outcome of the originating summons. **Disposition** 1. In the result, the application dated 17th July 2025 is allowed to the extent set out below: (a) The court’s direction of 14th July 2025, in so far as it confined the ruling on the originating summons to the material on record as at that date, is set aside. (b) The certificates of costs marked “GN a” and “GN b,” and the taxation rulings marked “GN c” and “GN d,” are admitted onto the record. (c) The reserved ruling on the originating summons dated 24th May 2023 shall be prepared and delivered afresh upon the entire record now before the court, including the said certificates of costs and the parties’ respective submissions, and shall address both the competence and the merits of the summons in the light of that material. (e) Prayer 3 of the application — that the originating summons be found spent — is declined at this stage, without prejudice to the Advocates advancing the same contention in answer to the summons. (f) The costs of this application shall abide the outcome of the originating summons. (g) The matter shall be mentioned on 23 September 2026 for the purpose of fixing a fresh ruling date on the originating summons. 1. Orders accordingly. **Signed, dated and published on 14 August 2026** Ngaah Jairus **JUDGE**