' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL MISC. APPLICATION NO. E462 OF 2025
BOMCO BUILDING CONTRACTORS LIMITED…………………APPLICANT
VERSUS
DEWDROP ENTERPRISES LIMITED………………………..…RESPONDENT
RULING
Background
Under consideration are two applications. The first application is the Notice of Motion dated 10 th February 2025. It was filed by Bomco Building Contractors Limited (Bomco) under Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. It seeks judgment and issuance of the decree in favour of the Bomco for the taxed costs in the sum of Kshs 531,880, together with accrued interest from the date of taxation, being 24 th June 2021, to the date of payment and costs of the application.
The grounds in support are stated on the face of it and in the Supporting Affidavit sworn by Ms Judith A. Guserwa, counsel acting for Bomco on 10 th February 2025. It is deposed that, upon the conclusion of this matter, Party and Party Bill of Costs was filed and taxed at Kshs 531,880/ on 24 th June 2021 and a Certificate of Taxation issued. However, the Respondent has refused, failed and/or ignored to honour or settle the taxed amount.
The Respondent opposed this Motion through Grounds of Opposition dated 14 th May 2025 in which it is stated that the Motion offends the provisions of the Advocates (Practice) Rules, the Civil Procedure Rules and the Court of Appeal Rules; that the current application is misplaced as Judith A. Guserwa has never been the respondent’s advocate; that this court lacks jurisdiction to allow this application; that the present application as filed threatens and/or contravenes the respondent’s constitutional right to fair administrative action, fair hearing and property and that the current application as filed is an abuse of the process of this court, is frivolous and vexatious and consequently the respondent prays that the application be dismissed and/or struck out.
In addition, the Respondent filed Replying Affidavit sworn by its Managing Director, Edward Thiong’o Wachira in which he has deposed that there are two pending applications in the Court of Appeal Civil Appeal No. 71 of 2013 dated 6 th December 2022 and 20 th December 2022 and that the appearance of Ms Judith A. Guserwa, acting for the Applicant offends Rule 8 of the Advocates (Practice) Rules.
It is deposed that Ms Judith A. Guserwa is not an officer of the Applicant and is not duly authorized to swear an affidavit on behalf of the Applicant; that the Certificate of Taxation is not signed; that Party and Party costs in the Appeal ought to be taxed under the Third Schedule to the Court of Appeal Rules; that the Respondent has never been the advocates client and that this court lacks jurisdiction to determine this application.
He has also claimed that the present Application threatens his constitutional right to fair administrative action, fair hearing and property and that this application is an abuse of the court process and ought to be dismissed.
There is a Supplementary Affidavit sworn by Ms Judith Guserwa on 11 th July 2025 to which is attached an amended Certificate of Taxation dated 3 rd July 2025 issued by L.D Ogombe, DR, Court of Appeal. The Certificate of Taxation shows Kshs 531,880 as the taxed costs. This is the figure sought in this application.
The second application is the Notice of Motion dated 30 th July 2025 Dewdrop Enterprises Limited (Dewdrop) seeking leave to file further affidavit; that the Further Affidavit annexed to that application be deemed as duly filed and costs of the application. The application is anchored on various provisions of the law as shown on the face of it.
The application is supported by the grounds that the Supplementary Affidavit introducing the Amended Certificate of Taxation was filed without leave of the court; that the signature on the Amended Certificate of Taxation dated 3 rd July 2025 does not belong to the Registrar of the Court of Appeal; that Dewdrop will be prejudiced if not allowed to respond to the Supplementary Affidavit.
In the Supporting Affidavit, Edward Wachira, who has described himself as the Managing Director of Dewdrop has attached a letter he claims bears the true signature of the Registrar of the Court of Appeal and an email directed to the Registrar of the Court of Appeal from Dewdrop complaining about the signature appended to the Amended Certificate of Taxation dated 3 rd July 2025.
The Notice of Motion dated 30 th July 2025 is opposed by Bomco through a Replying Affidavit sworn by Judith Guserwa, counsel for Bomco on 3 rd August 2025 in which she has deposed that her Firm extracted the Amended Certificate of Taxation issued on 3 rd July 2025 and filed it in this matter; that to her knowledge, the Amended Certificate of Taxation is a genuine document issued by the Court of Appeal and that the leave sought to file Further Affidavit is only meant to delay the determination of this matter.
Submissions
This Court directed, on 7 th August 2025, that parties file submissions to enable the Court to determine both applications together. Each party was granted seven (7) days to file and serve submissions. Bomco have not filed submissions. I have confirmed from the CTS that no submissions have been filed within 7 days allocated or after. Dewdrop filed submissions dated 9 th August 2025. They have submitted that the Application by Bomco is not anchored in law and therefore prayer one (1) cannot issue; that the application is sub judice because there is a pending application in the Court of Appeal; that Bomco has failed to prove that the Amended Certificate of Taxation dated issued on 3 rd July 2025 was signed by the Registrar of the Court of Appeal; that the Supplementary Affidavit was filed without leave of the court and therefore it should not be admitted and that costs of the applications ought to be paid by counsel for Bomco.
Determination
I have considered both applications. In respect to the application dated 30 th July 2025, I have noted that the Further Affidavit sought to be admitted as duly filed is a response to the Supplementary Affidavit reiterates what the Supporting Affidavit to the Application dated 30 th July 2025 states. Allowing it will not in any way prejudice the Applicant in the first Notice of Motion. Consequently, I hereby allow the application dated 30 th July 2025.
In respect of the Notice of Motion dated 10 th February 2025, I have noted from the Court record that the initial Certificate of Taxation attached to that application is dated 24 th June 2021 and was issued on 5 th May 2023. It lists Dewdrop Enterprises Limited as the Appellant and City Council of Nairobi as the Respondent. Bomco Building Contractors Limited are not named as parties. This is the reason why I was not able to write the Ruling on 25 th June 2025.
Counsel was asked to provide the correct Certificate of Taxation the following day 26 th June 2025. The matter was slotted for Ruling on 7 th August 2025.
In the intervening period, Dewdrop filed the Application dated 30 th July 2025. This new application introduced new issues that required to have both applications considered together. This led to the directions that parties file submissions to pave the way for a ruling touching on both applications.
Dewdrop, through Mr. Wachira, maintained all through that this matter is not concluded as to have the bill of costs taxed and raised issue with the signature purported to be by the Registrar Court of Appeal.
Safe for stating that Dewdrop is using delaying tactics in bringing the second application and that the signature of the Deputy Registrar Court of Appeal is believed to be genuine, Bomco, through its counsel did not present any material to support their claim that the signature is indeed genuine. There are not submissions filed despite the court having allocated time within which to file them. As the matter stands, this court is not able to know the truth of the allegations on the fake signature.
I have read the email exchange between Mr. Wachira and the Registrar of the Court of Appeal on the issue of the signature. The Registrar of the Court of Appeal wrote to Mr. Wachira on 15 th July 2025 and undertook to investigate the issue of the purported signature on the Amended Certificate of Taxation. The issue was actioned to one Hon. Joan who was asked to urgently deal with the matter.
This court was not told if there is any outcome of that investigation.
This is a simple matter. However, there has emerged issues that need to be sorted out before this court can finalize its determination of the matter. I am persuaded by the arguments of Dewdrop. To allow parties to sort the issue of the veracity of the signature appended on the Certificate of Taxation issued on 3 rd July 2025. I am inclined to await the outcome of the investigations on the signature on the Amended Certificate of Taxation. Once that is done, this court will proceed to handle this matter and conclude the determination of the Notice of Motion dated 10 th February 2025.
Mr. Wachira will be allowed time to bring the findings of the investigations in respect of the signature.
It is so ordered.
Dated, signed and delivered this 2 nd September 2025.
S. N. MUTUKU
JUDGE
In the presence of:
Ms Judith Guserwa for the Applicant
Mr. Wachira, the Respondent
'
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL MISC. APPLICATION NO. E462 OF 2025
BOMCO BUILDING CONTRACTORS LIMITED…………………APPLICANT
VERSUS
DEWDROP ENTERPRISES LIMITED………………………..…RESPONDENT
RULING
Background
Under consideration are two applications. The first application is the Notice of Motion dated 10 th February 2025. It was filed by Bomco Building Contractors Limited (Bomco) under Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. It seeks judgment and issuance of the decree in favour of the Bomco for the taxed costs in the sum of Kshs 531,880, together with accrued interest from the date of taxation, being 24 th June 2021, to the date of payment and costs of the application.
The grounds in support are stated on the face of it and in the Supporting Affidavit sworn by Ms Judith A. Guserwa, counsel acting for Bomco on 10 th February 2025. It is deposed that, upon the conclusion of this matter, Party and Party Bill of Costs was filed and taxed at Kshs 531,880/ on 24 th June 2021 and a Certificate of Taxation issued. However, the Respondent has refused, failed and/or ignored to honour or settle the taxed amount.
The Respondent opposed this Motion through Grounds of Opposition dated 14 th May 2025 in which it is stated that the Motion offends the provisions of the Advocates (Practice) Rules, the Civil Procedure Rules and the Court of Appeal Rules; that the current application is misplaced as Judith A. Guserwa has never been the respondent’s advocate; that this court lacks jurisdiction to allow this application; that the present application as filed threatens and/or contravenes the respondent’s constitutional right to fair administrative action, fair hearing and property and that the current application as filed is an abuse of the process of this court, is frivolous and vexatious and consequently the respondent prays that the application be dismissed and/or struck out.
In addition, the Respondent filed Replying Affidavit sworn by its Managing Director, Edward Thiong’o Wachira in which he has deposed that there are two pending applications in the Court of Appeal Civil Appeal No. 71 of 2013 dated 6 th December 2022 and 20 th December 2022 and that the appearance of Ms Judith A. Guserwa, acting for the Applicant offends Rule 8 of the Advocates (Practice) Rules.
It is deposed that Ms Judith A. Guserwa is not an officer of the Applicant and is not duly authorized to swear an affidavit on behalf of the Applicant; that the Certificate of Taxation is not signed; that Party and Party costs in the Appeal ought to be taxed under the Third Schedule to the Court of Appeal Rules; that the Respondent has never been the advocates client and that this court lacks jurisdiction to determine this application.
He has also claimed that the present Application threatens his constitutional right to fair administrative action, fair hearing and property and that this application is an abuse of the court process and ought to be dismissed.
There is a Supplementary Affidavit sworn by Ms Judith Guserwa on 11 th July 2025 to which is attached an amended Certificate of Taxation dated 3 rd July 2025 issued by L.D Ogombe, DR, Court of Appeal. The Certificate of Taxation shows Kshs 531,880 as the taxed costs. This is the figure sought in this application.
The second application is the Notice of Motion dated 30 th July 2025 Dewdrop Enterprises Limited (Dewdrop) seeking leave to file further affidavit; that the Further Affidavit annexed to that application be deemed as duly filed and costs of the application. The application is anchored on various provisions of the law as shown on the face of it.
The application is supported by the grounds that the Supplementary Affidavit introducing the Amended Certificate of Taxation was filed without leave of the court; that the signature on the Amended Certificate of Taxation dated 3 rd July 2025 does not belong to the Registrar of the Court of Appeal; that Dewdrop will be prejudiced if not allowed to respond to the Supplementary Affidavit.
In the Supporting Affidavit, Edward Wachira, who has described himself as the Managing Director of Dewdrop has attached a letter he claims bears the true signature of the Registrar of the Court of Appeal and an email directed to the Registrar of the Court of Appeal from Dewdrop complaining about the signature appended to the Amended Certificate of Taxation dated 3 rd July 2025.
The Notice of Motion dated 30 th July 2025 is opposed by Bomco through a Replying Affidavit sworn by Judith Guserwa, counsel for Bomco on 3 rd August 2025 in which she has deposed that her Firm extracted the Amended Certificate of Taxation issued on 3 rd July 2025 and filed it in this matter; that to her knowledge, the Amended Certificate of Taxation is a genuine document issued by the Court of Appeal and that the leave sought to file Further Affidavit is only meant to delay the determination of this matter.
Submissions
This Court directed, on 7 th August 2025, that parties file submissions to enable the Court to determine both applications together. Each party was granted seven (7) days to file and serve submissions. Bomco have not filed submissions. I have confirmed from the CTS that no submissions have been filed within 7 days allocated or after. Dewdrop filed submissions dated 9 th August 2025. They have submitted that the Application by Bomco is not anchored in law and therefore prayer one (1) cannot issue; that the application is sub judice because there is a pending application in the Court of Appeal; that Bomco has failed to prove that the Amended Certificate of Taxation dated issued on 3 rd July 2025 was signed by the Registrar of the Court of Appeal; that the Supplementary Affidavit was filed without leave of the court and therefore it should not be admitted and that costs of the applications ought to be paid by counsel for Bomco.
Determination
I have considered both applications. In respect to the application dated 30 th July 2025, I have noted that the Further Affidavit sought to be admitted as duly filed is a response to the Supplementary Affidavit reiterates what the Supporting Affidavit to the Application dated 30 th July 2025 states. Allowing it will not in any way prejudice the Applicant in the first Notice of Motion. Consequently, I hereby allow the application dated 30 th July 2025.
In respect of the Notice of Motion dated 10 th February 2025, I have noted from the Court record that the initial Certificate of Taxation attached to that application is dated 24 th June 2021 and was issued on 5 th May 2023. It lists Dewdrop Enterprises Limited as the Appellant and City Council of Nairobi as the Respondent. Bomco Building Contractors Limited are not named as parties. This is the reason why I was not able to write the Ruling on 25 th June 2025.
Counsel was asked to provide the correct Certificate of Taxation the following day 26 th June 2025. The matter was slotted for Ruling on 7 th August 2025.
In the intervening period, Dewdrop filed the Application dated 30 th July 2025. This new application introduced new issues that required to have both applications considered together. This led to the directions that parties file submissions to pave the way for a ruling touching on both applications.
Dewdrop, through Mr. Wachira, maintained all through that this matter is not concluded as to have the bill of costs taxed and raised issue with the signature purported to be by the Registrar Court of Appeal.
Safe for stating that Dewdrop is using delaying tactics in bringing the second application and that the signature of the Deputy Registrar Court of Appeal is believed to be genuine, Bomco, through its counsel did not present any material to support their claim that the signature is indeed genuine. There are not submissions filed despite the court having allocated time within which to file them. As the matter stands, this court is not able to know the truth of the allegations on the fake signature.
I have read the email exchange between Mr. Wachira and the Registrar of the Court of Appeal on the issue of the signature. The Registrar of the Court of Appeal wrote to Mr. Wachira on 15 th July 2025 and undertook to investigate the issue of the purported signature on the Amended Certificate of Taxation. The issue was actioned to one Hon. Joan who was asked to urgently deal with the matter.
This court was not told if there is any outcome of that investigation.
This is a simple matter. However, there has emerged issues that need to be sorted out before this court can finalize its determination of the matter. I am persuaded by the arguments of Dewdrop. To allow parties to sort the issue of the veracity of the signature appended on the Certificate of Taxation issued on 3 rd July 2025. I am inclined to await the outcome of the investigations on the signature on the Amended Certificate of Taxation. Once that is done, this court will proceed to handle this matter and conclude the determination of the Notice of Motion dated 10 th February 2025.
Mr. Wachira will be allowed time to bring the findings of the investigations in respect of the signature.
It is so ordered.
Dated, signed and delivered this 2 nd September 2025.
S. N. MUTUKU
JUDGE
In the presence of:
Ms Judith Guserwa for the Applicant
Mr. Wachira, the Respondent
'