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1. Before this Court for determination is a Notice of Motion dated 25th November 2024, seeking;
a. Spent
b. Spent
c. Order to set aside the ex parte proceedings culminating in the ex parte ruling issued on 29/2/2024 and any other/further proceedings in execution.
d. Leave to file a response to the Bill of Costs out of time and re-admit the matter for hearing on merits.
2. The application, is supported by n the affidavit sworn by the Legal Officer of the Applicant. It is deponed that the subject party and party Bill of Costs was instituted to compel the Applicant to pay costs arising from Machakos CMCC No. 894 of 2008. The matter proceeded ex parte, culminating in an ex parte ruling delivered against the Applicant on 29th February 2024. The Applicant alleges that, in the absence of any orders for stay of execution of the said ruling, the Advocate has commenced execution proceedings and instructed Mbusera Auctioneers to attach and advertise for sale by public auction the Applicant’s properties, including its tools of trade, to its detriment. Mbusera Auctioneers consequently proclaimed the Applicant’s goods on 22nd November 2024, prompting the present application for conservatory orders.
3. The Applicant further avers that it had already settled the final fee note arising from Machakos CMCC No. 894 of 2008 and has annexed a copy of the fee note, cheque number, and payment requisition as proof. It contends that it was never served with the summons to enter appearance, decree, or ruling, rendering the proceedings irregular. That it only became aware of the existence of the judgment upon being served with the warrants of attachment and proclamation notice. Consequently, it instructed the firm of G & G Advocates LLP to take over the conduct of the matter. The Applicant asserts that it has a formidable response to the Advocate’s claim, raising several triable issues, and prays to be afforded an opportunity to fully canvass the same. It adds that it filed the present application promptly upon learning of the execution process and that it will suffer grave prejudice if the application is dismissed, whereas the Advocate stands to suffer none, as he can be adequately compensated by an award of costs.
4. The application is opposed through a Replying Affidavit sworn on 10th December 2024 by Martin G. Mwaniki. The Respondent outlines the procedural history. He deposed that the application is principally founded on the false allegation that the Applicant only became aware of the proceedings at the point of attachment, whereas the attachment was, in fact, the culmination of a comprehensive taxation process. The process entailed the filing and service of the Bill of Costs dated 21st October 2021; taxation of the Bill of Costs by the taxing officer on 17th February 2022; extraction of the resultant Certificate of Taxation dated 13th April 2022; filing of an application for judgment on the taxed costs dated 14th June 2022, which was allowed with costs on 17th May 2023; taxation of the party and party Bill of Costs in respect of the costs awarded , which was taxed on 29th February 2024; and finally, the extraction and execution of the decree arising from the judgment on taxed costs. The Respondent added that a draft decree had been forwarded to the advocates on record for the Applicant, who had filed and served a Notice of Appointment dated 9th November 2023 a material fact that the Applicant deliberately failed to disclose in its application.
5. The Respondent further contends that the instant matter concerns the taxation of an Advocate Client Bill of Costs, and the requisite document for service upon filing of the cause is a Notice of Taxation and not a summons to enter appearance, as erroneously alleged by the Applicant. The Respondent maintains that the Notice of Taxation, together with the Bill of Costs, were duly served upon the Applicant. He avers that the Applicant has at all times been aware of the taxation proceedings and had appointed advocates who filed a Notice of Appointment on 10th November 2023, more than one year before the filing of the present application dated 25th November 2024.
6. As regards the prayers sought to set aside the proceedings and to grant leave to file a response to the Bill of Costs, the Respondent argues that such orders are unavailable since the present application is neither a reference against taxation brought pursuant to Paragraph 11 of the Advocates (Remuneration) Order nor an application seeking extension of time under the same.
7. Pursuant to the directions issued by this Court, stay of execution was granted pending the hearing and determination of the application and parties filed written submissions. The Applicant filed their submissions dated 13th March 2025 while the Advocate’s submissions are dated 20th May 2025.
Applicant’s submissions
8. The Applicant, in its submissions, provided a brief introduction and factual background of the matter. It reiterated that the Bill of Costs in issue emanates from Machakos CMCC No. 894 of 2008, Redempta Ndunge Ndawa v John Mulwa Kaangatu & Munza Investments Limited, wherein the Applicant contends that the Advocates’ fee note dated 30th September 2009 was duly paid and settled in full. The Applicant referred to a claim requisition voucher of the same date confirming payment of a sum of Kshs. 72,103/=. It was the Applicant’s submission that, despite the said settlement, the Advocate proceeded to file a Bill of Costs in October 2021 seeking additional sums allegedly due. The Applicant maintains that it is at a loss as to the basis of the purported additional fees, as no corresponding fee note or supporting documentation was ever issued.
9. The Applicant identified three issues for determination that is; a.) whether the Applicant was duly served and accorded an opportunity to participate in the taxation proceedings b) whether the ex parte ruling obtained on 29th February 2024is irregular, unjust and liable to be set aside and c) whether the claim for additional sums in the Bill of Costs is lawful given the prior full settlement of the Respondent’s fees.
10. On the first issue, the Applicant relied on Order 9 Rule 2(c) of the Civil Procedure Rules and the decision in Kawangware Welfare Group v Francis Kinyua & Another [2018] eKLR, submitting that service upon the client is a mandatory prerequisite before a Bill of Costs can be heard and determined. The Applicant contends that it was never served with the Bill of Costs and was consequently denied the right to a fair hearing as guaranteed under Article 50 of the Constitution. It further submits that the Advocate has failed to tender concrete proof of service, and that the mere assertion that the documents were received does not meet the evidentiary threshold required to establish proper service.
11. On the second issue, the Applicant cited Shanzu Investments Limited v Commissioner of Lands [1993] eKLR and Patel v E.A. Cargo Handling Services Limited [1974] EA 75 in support of its submission that it was never served and was thus condemned unheard. It argues that, having demonstrated lack of service, the ex parte ruling was irregular and should therefore be set aside to afford the Applicant an opportunity to be heard on the substantive merits of the Bill of Costs.
12. On the third issue, the Applicant submitted that it had fully discharged its obligations by settling the Advocate’s fee note in the sum of Kshs. 72,103/= on 30th September 2009 and that the subsequent Bill of Costs filed in October 2021 seeks additional sums without any lawful justification. In support of its position, the Applicant cited Hezekiah Wanjohi v Attorney General & Another [2021] eKLR and Section 4(1) of the Limitation of Actions Act, arguing that the doctrines of estoppel and acquiescence bar the Advocate from reasserting a claim that had been previously acknowledged as settled.
13. The Applicant further contends that the Bill of Costs, having been filed more than twelve years after the alleged cause of action arose, is statutorily time-barred. It argues that such an inordinate delay raises serious concerns regarding the legality and propriety of the Advocate’s claim. The Applicant warns that allowing the Advocate to enforce the impugned Bill of Costs would set a dangerous precedent, enabling legal practitioners to revive dormant claims long after the expiry of the statutory limitation period. It is the Applicant’s further submission that the Advocate has not demonstrated any exceptional circumstances to warrant extension of time under Section 27 of the Limitation of Actions Act, which applies only in limited instances such as disability, fraud or mistake.
14. In conclusion, the Applicant urged the Court to allow the application as prayed.
Advocate’s submissions
15. The Respondent submitted on two issues that is, whether the Applicant client was duly served and accorded an opportunity to participate in the taxation proceedings and whether the court is functus officio with respect to the taxed Bill of Costs.
16. On the first issue, the Advocates submitted that service was properly effected upon the Applicant throughout the proceedings. This was demonstrated through a series of of affidavits of service and letters filed at each procedural stage, evidencing diligent and proper service.
17. The Advocate further argued that the Applicant was accorded a fair and reasonable opportunity to participate in the taxation proceedings but failed to do so despite proper and effective service. Relying on the decision in Patrick Omondi Opiyo t/a Dallas Pub v Shaban Keah & Another [2018] eKLR, the Advocate contended that the Applicant had the opportunity to be heard prior to the taxation of the Bill of Costs. It was submitted that, notwithstanding proper service, the Applicant chose not to exercise its right to participate or raise objections, and therefore cannot now seek to set aside the judgment as a remedy for its own inaction.
18. On the second issue, the Advocate submitted that upon completion of the taxation process and in the absences of any challenge by way of a reference to a judge, the Court became functus officio in respect of the taxation process and the resultant judgment. While citing Paragraph 11 of the Advocates (Remuneration) Order, the Advocate emphasized that the Applicant’s present application was not brought under the said paragraph, either as a reference, or an application for extension of time. It was further submitted that the Applicant’s motion is based on matters res judicata, particularly the claim that legal fees had already been settled. The Advocate argued that the taxing officer, in taxing the Bill of Costs dated 21st October 2021, expressly considered the sums acknowledged as paid under Item 88 of the Bill, and made a final determination on that issue. As such, reopening the matter would therefore offend the doctrine of res judicata. In support of this position, the Advocate cited Nyeri Civil Application No. 5 of 2017, Lenard Mambo Kuria v Ann Wanjiru Mambo [2017].
19. In conclusion, the Advocate urged the court to dismiss the present application with costs, asserting that it is wholly devoid of merit. Analysis and Determination
20. I have considered the rival affidavits by parties and submissions made by both parties in respect of the motion. The issues that arise for determination are;
(a) Whether the Applicant was duly served with the Advocate Client Bill of Costs and accorded an opportunity to participate in the taxation proceedings.
(b) Whether the ex parte ruling delivered on 29th February 2024 is irregular and liable to be set aside.
(c) Whether the Advocate’s claim for additional sums is lawful in view of the alleged prior full settlement and the question of limitation.
(d) Whether the Court is functus officio with respect to the taxed Bill of Costs and the resultant judgment.
21. On the issue of service, , the Applicant contends that it was never served with the Advocate Client Bill of Costs and only became aware of the matter upon receiving warrants of attachment and a proclamation notice. It argues that the failure to serve violated its constitutional right to a fair hearing under Article 50 of the Constitution. The Advocate, however, maintains that service was duly effected at every stage of the proceedings and has exhibited several affidavits of service, including those relating to the Bill of Costs dated 21st October 2021, the taxation notice, the subsequent application for judgment and the draft decree forwarded to the Applicant’s advocates after they filed a Notice of Appointment on 10th November 2023.
22. The law on service is well settled. Order 9 of the Civil Procedure Rules require that a client be served with a Notice of Taxation. Proof of service is established through an affidavit of service. Once such proof is filed, the burden shifts to the party alleging non-service to rebut it.
23. From the material before the Court, it is evident that affidavits of service were filed contemporaneously with the Bill of Costs and subsequent applications. I have examined the Affidavit of Service sworn on 29th October 2021 and its attachments, which confirm that the Applicant was indeed served with the Bill of Costs dated 21st October 2021 and the Notice of Taxation. The record further shows that the Applicant’s advocate filed a Notice of Appointment on 10th November 2023, well before the impugned ruling of 29th February 2024
24. In the absence of any rebuttal evidence challenging the affidavits of service, the Court finds that the Applicant was duly served and accorded an opportunity to be heard but failed to utilize it. The claim that the Applicant was unaware of the proceedings until execution commenced is therefore unfounded.
25. On whether the ex parte ruling is irregular and ought to be set aside, the Applicant urges the Court to do so on the ground that it was condemned unheard. The power of the Court to set aside ex parte judgments is discretionary and must be exercised judiciously to prevent an injustice. The rationale is to balance the right to be heard with the duty to uphold the finality of litigation. Where a party demonstrates lack of proper service or sufficient cause for non-appearance, the Court will readily set aside the judgment. However, where service was proper and the failure to attend is attributed to the party’s own inaction, the Court will be slow to exercise its discretion.
26. In this case, having found that the Applicant was duly served and had even appointed counsel prior to the taxation, the proceedings culminating in the ruling of 29th February 2024 cannot be deemed irregular. The ex parte nature of the ruling was a consequence of the Applicant’s failure to participate, not a denial of its right to be heard. Consequently, the Court finds no sufficient cause to warrant the setting aside of the ruling.
27. On whether the Advocate’s claim for additional sums is lawful in light of the alleged prior settlement and limitation, the Applicant contends that it fully settled the Advocate’s fees through a payment of Kshs. 72,103 on 30th September 2009. It argues that the subsequent Bill of Costs filed in October 2021 is unjustified and time-barred under Section 4(1) of the Limitation of Actions Act. The Applicant relies on the doctrine of estoppel, asserting that the Advocate cannot reopen a matter already settled.
28. The Advocate however, asserts that the issue of settlement was duly considered by the taxing officer, who acknowledged the sums paid under Item 88 of the Bill of Costs before arriving at the taxed amount. The Advocate submits that this issue is now res judicata and cannot be revisited through the present application.
29. This court takes judicial notice that taxation of costs under the Advocates Remuneration Order is a specialized process in which questions of quantum and retainer are determined by the taxing officer. I align myself with the determination in Donholm Rahisi Stores (firm) v EA Portland Cement Ltd [2005] eKLR where it was held that:
“Taxation of costs whether those costs be between party and party or between advocate and client is a special jurisdiction reserved to the taxing officer by the Advocates Remuneration Order. The court will not be drawn into the arena of taxation except by way of reference (from a decision on taxation) made under Rule 11 of the Advocates Remuneration Order.”
30. Paragraph 11 of the Advocates Remuneration Order provides the mechanism for challenging a taxation decision which is by reference to a judge within fourteen (14) days of the decision. The Applicant has not invoked that procedure. Instead, it seeks to reopen the question of whether the fees were already settled, a matter that was conclusively addressed by the taxing officer.
31. On the issue of limitation, while Section 4(1)(a) of the Limitation of Actions Act prescribes a six-year limitation period for actions founded on contract, it is settled that an Advocate Client Bill of Costs may, with leave, be filed beyond the six years if the retainer subsists or where work continues under the same brief. No evidence has been presented to show that the taxing officer acted without jurisdiction or that the Bill of Costs was invalid due to limitation. In any event, such an argument should have been raised before the taxing officer or through a reference under Paragraph 11.
32. Accordingly, the Court finds that the claim for additional sums was lawfully taxed and that the question of prior settlement cannot be reopened at this stage.
33. On the issue whether the Court is functus officio, the Advocate contends that following taxation and the issuance of the Certificate of Taxation, the Court became functus offico. In the absence of a reference challenging the taxation, the Court lacks jurisdiction to reopen or vary the decision. This position aligns with the principle that once a court has rendered a final determination, it cannot revisit the matter except as expressly provided by law. The taxing officer’s decision was adopted as a judgment pursuant to Section 51(2) of the Advocates Act and no reference was filed within the statutory period. Accordingly, the present application, amounts to an attempt to re-litigate matters already conclusively determined, contrary to the doctrine of functus officio and the overarching policy of finality in judicial proceedings.
34. Based on the foregoing, the Notice of Motion dated 25th November 2024 is disallowed and is dismissed with costs to the Advocate.
Orders accordingly
Delivered, Dated and Signed this 6th day of November 2025
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1. Before this Court for determination is a Notice of Motion dated 25th November 2024, seeking;
a. Spent
b. Spent
c. Order to set aside the ex parte proceedings culminating in the ex parte ruling issued on 29/2/2024 and any other/further proceedings in execution.
d. Leave to file a response to the Bill of Costs out of time and re-admit the matter for hearing on merits.
2. The application, is supported by n the affidavit sworn by the Legal Officer of the Applicant. It is deponed that the subject party and party Bill of Costs was instituted to compel the Applicant to pay costs arising from Machakos CMCC No. 894 of 2008. The matter proceeded ex parte, culminating in an ex parte ruling delivered against the Applicant on 29th February 2024. The Applicant alleges that, in the absence of any orders for stay of execution of the said ruling, the Advocate has commenced execution proceedings and instructed Mbusera Auctioneers to attach and advertise for sale by public auction the Applicant’s properties, including its tools of trade, to its detriment. Mbusera Auctioneers consequently proclaimed the Applicant’s goods on 22nd November 2024, prompting the present application for conservatory orders.
3. The Applicant further avers that it had already settled the final fee note arising from Machakos CMCC No. 894 of 2008 and has annexed a copy of the fee note, cheque number, and payment requisition as proof. It contends that it was never served with the summons to enter appearance, decree, or ruling, rendering the proceedings irregular. That it only became aware of the existence of the judgment upon being served with the warrants of attachment and proclamation notice. Consequently, it instructed the firm of G & G Advocates LLP to take over the conduct of the matter. The Applicant asserts that it has a formidable response to the Advocate’s claim, raising several triable issues, and prays to be afforded an opportunity to fully canvass the same. It adds that it filed the present application promptly upon learning of the execution process and that it will suffer grave prejudice if the application is dismissed, whereas the Advocate stands to suffer none, as he can be adequately compensated by an award of costs.
4. The application is opposed through a Replying Affidavit sworn on 10th December 2024 by Martin G. Mwaniki. The Respondent outlines the procedural history. He deposed that the application is principally founded on the false allegation that the Applicant only became aware of the proceedings at the point of attachment, whereas the attachment was, in fact, the culmination of a comprehensive taxation process. The process entailed the filing and service of the Bill of Costs dated 21st October 2021; taxation of the Bill of Costs by the taxing officer on 17th February 2022; extraction of the resultant Certificate of Taxation dated 13th April 2022; filing of an application for judgment on the taxed costs dated 14th June 2022, which was allowed with costs on 17th May 2023; taxation of the party and party Bill of Costs in respect of the costs awarded , which was taxed on 29th February 2024; and finally, the extraction and execution of the decree arising from the judgment on taxed costs. The Respondent added that a draft decree had been forwarded to the advocates on record for the Applicant, who had filed and served a Notice of Appointment dated 9th November 2023 a material fact that the Applicant deliberately failed to disclose in its application.
5. The Respondent further contends that the instant matter concerns the taxation of an Advocate Client Bill of Costs, and the requisite document for service upon filing of the cause is a Notice of Taxation and not a summons to enter appearance, as erroneously alleged by the Applicant. The Respondent maintains that the Notice of Taxation, together with the Bill of Costs, were duly served upon the Applicant. He avers that the Applicant has at all times been aware of the taxation proceedings and had appointed advocates who filed a Notice of Appointment on 10th November 2023, more than one year before the filing of the present application dated 25th November 2024.
6. As regards the prayers sought to set aside the proceedings and to grant leave to file a response to the Bill of Costs, the Respondent argues that such orders are unavailable since the present application is neither a reference against taxation brought pursuant to Paragraph 11 of the Advocates (Remuneration) Order nor an application seeking extension of time under the same.
7. Pursuant to the directions issued by this Court, stay of execution was granted pending the hearing and determination of the application and parties filed written submissions. The Applicant filed their submissions dated 13th March 2025 while the Advocate’s submissions are dated 20th May 2025.
Applicant’s submissions
8. The Applicant, in its submissions, provided a brief introduction and factual background of the matter. It reiterated that the Bill of Costs in issue emanates from Machakos CMCC No. 894 of 2008, Redempta Ndunge Ndawa v John Mulwa Kaangatu & Munza Investments Limited, wherein the Applicant contends that the Advocates’ fee note dated 30th September 2009 was duly paid and settled in full. The Applicant referred to a claim requisition voucher of the same date confirming payment of a sum of Kshs. 72,103/=. It was the Applicant’s submission that, despite the said settlement, the Advocate proceeded to file a Bill of Costs in October 2021 seeking additional sums allegedly due. The Applicant maintains that it is at a loss as to the basis of the purported additional fees, as no corresponding fee note or supporting documentation was ever issued.
9. The Applicant identified three issues for determination that is; a.) whether the Applicant was duly served and accorded an opportunity to participate in the taxation proceedings b) whether the ex parte ruling obtained on 29th February 2024is irregular, unjust and liable to be set aside and c) whether the claim for additional sums in the Bill of Costs is lawful given the prior full settlement of the Respondent’s fees.
10. On the first issue, the Applicant relied on Order 9 Rule 2(c) of the Civil Procedure Rules and the decision in Kawangware Welfare Group v Francis Kinyua & Another [2018] eKLR, submitting that service upon the client is a mandatory prerequisite before a Bill of Costs can be heard and determined. The Applicant contends that it was never served with the Bill of Costs and was consequently denied the right to a fair hearing as guaranteed under Article 50 of the Constitution. It further submits that the Advocate has failed to tender concrete proof of service, and that the mere assertion that the documents were received does not meet the evidentiary threshold required to establish proper service.
11. On the second issue, the Applicant cited Shanzu Investments Limited v Commissioner of Lands [1993] eKLR and Patel v E.A. Cargo Handling Services Limited [1974] EA 75 in support of its submission that it was never served and was thus condemned unheard. It argues that, having demonstrated lack of service, the ex parte ruling was irregular and should therefore be set aside to afford the Applicant an opportunity to be heard on the substantive merits of the Bill of Costs.
12. On the third issue, the Applicant submitted that it had fully discharged its obligations by settling the Advocate’s fee note in the sum of Kshs. 72,103/= on 30th September 2009 and that the subsequent Bill of Costs filed in October 2021 seeks additional sums without any lawful justification. In support of its position, the Applicant cited Hezekiah Wanjohi v Attorney General & Another [2021] eKLR and Section 4(1) of the Limitation of Actions Act, arguing that the doctrines of estoppel and acquiescence bar the Advocate from reasserting a claim that had been previously acknowledged as settled.
13. The Applicant further contends that the Bill of Costs, having been filed more than twelve years after the alleged cause of action arose, is statutorily time-barred. It argues that such an inordinate delay raises serious concerns regarding the legality and propriety of the Advocate’s claim. The Applicant warns that allowing the Advocate to enforce the impugned Bill of Costs would set a dangerous precedent, enabling legal practitioners to revive dormant claims long after the expiry of the statutory limitation period. It is the Applicant’s further submission that the Advocate has not demonstrated any exceptional circumstances to warrant extension of time under Section 27 of the Limitation of Actions Act, which applies only in limited instances such as disability, fraud or mistake.
14. In conclusion, the Applicant urged the Court to allow the application as prayed.
Advocate’s submissions
15. The Respondent submitted on two issues that is, whether the Applicant client was duly served and accorded an opportunity to participate in the taxation proceedings and whether the court is functus officio with respect to the taxed Bill of Costs.
16. On the first issue, the Advocates submitted that service was properly effected upon the Applicant throughout the proceedings. This was demonstrated through a series of of affidavits of service and letters filed at each procedural stage, evidencing diligent and proper service.
17. The Advocate further argued that the Applicant was accorded a fair and reasonable opportunity to participate in the taxation proceedings but failed to do so despite proper and effective service. Relying on the decision in Patrick Omondi Opiyo t/a Dallas Pub v Shaban Keah & Another [2018] eKLR, the Advocate contended that the Applicant had the opportunity to be heard prior to the taxation of the Bill of Costs. It was submitted that, notwithstanding proper service, the Applicant chose not to exercise its right to participate or raise objections, and therefore cannot now seek to set aside the judgment as a remedy for its own inaction.
18. On the second issue, the Advocate submitted that upon completion of the taxation process and in the absences of any challenge by way of a reference to a judge, the Court became functus officio in respect of the taxation process and the resultant judgment. While citing Paragraph 11 of the Advocates (Remuneration) Order, the Advocate emphasized that the Applicant’s present application was not brought under the said paragraph, either as a reference, or an application for extension of time. It was further submitted that the Applicant’s motion is based on matters res judicata, particularly the claim that legal fees had already been settled. The Advocate argued that the taxing officer, in taxing the Bill of Costs dated 21st October 2021, expressly considered the sums acknowledged as paid under Item 88 of the Bill, and made a final determination on that issue. As such, reopening the matter would therefore offend the doctrine of res judicata. In support of this position, the Advocate cited Nyeri Civil Application No. 5 of 2017, Lenard Mambo Kuria v Ann Wanjiru Mambo [2017].
19. In conclusion, the Advocate urged the court to dismiss the present application with costs, asserting that it is wholly devoid of merit. Analysis and Determination
20. I have considered the rival affidavits by parties and submissions made by both parties in respect of the motion. The issues that arise for determination are;
(a) Whether the Applicant was duly served with the Advocate Client Bill of Costs and accorded an opportunity to participate in the taxation proceedings.
(b) Whether the ex parte ruling delivered on 29th February 2024 is irregular and liable to be set aside.
(c) Whether the Advocate’s claim for additional sums is lawful in view of the alleged prior full settlement and the question of limitation.
(d) Whether the Court is functus officio with respect to the taxed Bill of Costs and the resultant judgment.
21. On the issue of service, , the Applicant contends that it was never served with the Advocate Client Bill of Costs and only became aware of the matter upon receiving warrants of attachment and a proclamation notice. It argues that the failure to serve violated its constitutional right to a fair hearing under Article 50 of the Constitution. The Advocate, however, maintains that service was duly effected at every stage of the proceedings and has exhibited several affidavits of service, including those relating to the Bill of Costs dated 21st October 2021, the taxation notice, the subsequent application for judgment and the draft decree forwarded to the Applicant’s advocates after they filed a Notice of Appointment on 10th November 2023.
22. The law on service is well settled. Order 9 of the Civil Procedure Rules require that a client be served with a Notice of Taxation. Proof of service is established through an affidavit of service. Once such proof is filed, the burden shifts to the party alleging non-service to rebut it.
23. From the material before the Court, it is evident that affidavits of service were filed contemporaneously with the Bill of Costs and subsequent applications. I have examined the Affidavit of Service sworn on 29th October 2021 and its attachments, which confirm that the Applicant was indeed served with the Bill of Costs dated 21st October 2021 and the Notice of Taxation. The record further shows that the Applicant’s advocate filed a Notice of Appointment on 10th November 2023, well before the impugned ruling of 29th February 2024
24. In the absence of any rebuttal evidence challenging the affidavits of service, the Court finds that the Applicant was duly served and accorded an opportunity to be heard but failed to utilize it. The claim that the Applicant was unaware of the proceedings until execution commenced is therefore unfounded.
25. On whether the ex parte ruling is irregular and ought to be set aside, the Applicant urges the Court to do so on the ground that it was condemned unheard. The power of the Court to set aside ex parte judgments is discretionary and must be exercised judiciously to prevent an injustice. The rationale is to balance the right to be heard with the duty to uphold the finality of litigation. Where a party demonstrates lack of proper service or sufficient cause for non-appearance, the Court will readily set aside the judgment. However, where service was proper and the failure to attend is attributed to the party’s own inaction, the Court will be slow to exercise its discretion.
26. In this case, having found that the Applicant was duly served and had even appointed counsel prior to the taxation, the proceedings culminating in the ruling of 29th February 2024 cannot be deemed irregular. The ex parte nature of the ruling was a consequence of the Applicant’s failure to participate, not a denial of its right to be heard. Consequently, the Court finds no sufficient cause to warrant the setting aside of the ruling.
27. On whether the Advocate’s claim for additional sums is lawful in light of the alleged prior settlement and limitation, the Applicant contends that it fully settled the Advocate’s fees through a payment of Kshs. 72,103 on 30th September 2009. It argues that the subsequent Bill of Costs filed in October 2021 is unjustified and time-barred under Section 4(1) of the Limitation of Actions Act. The Applicant relies on the doctrine of estoppel, asserting that the Advocate cannot reopen a matter already settled.
28. The Advocate however, asserts that the issue of settlement was duly considered by the taxing officer, who acknowledged the sums paid under Item 88 of the Bill of Costs before arriving at the taxed amount. The Advocate submits that this issue is now res judicata and cannot be revisited through the present application.
29. This court takes judicial notice that taxation of costs under the Advocates Remuneration Order is a specialized process in which questions of quantum and retainer are determined by the taxing officer. I align myself with the determination in Donholm Rahisi Stores (firm) v EA Portland Cement Ltd [2005] eKLR where it was held that:
“Taxation of costs whether those costs be between party and party or between advocate and client is a special jurisdiction reserved to the taxing officer by the Advocates Remuneration Order. The court will not be drawn into the arena of taxation except by way of reference (from a decision on taxation) made under Rule 11 of the Advocates Remuneration Order.”
30. Paragraph 11 of the Advocates Remuneration Order provides the mechanism for challenging a taxation decision which is by reference to a judge within fourteen (14) days of the decision. The Applicant has not invoked that procedure. Instead, it seeks to reopen the question of whether the fees were already settled, a matter that was conclusively addressed by the taxing officer.
31. On the issue of limitation, while Section 4(1)(a) of the Limitation of Actions Act prescribes a six-year limitation period for actions founded on contract, it is settled that an Advocate Client Bill of Costs may, with leave, be filed beyond the six years if the retainer subsists or where work continues under the same brief. No evidence has been presented to show that the taxing officer acted without jurisdiction or that the Bill of Costs was invalid due to limitation. In any event, such an argument should have been raised before the taxing officer or through a reference under Paragraph 11.
32. Accordingly, the Court finds that the claim for additional sums was lawfully taxed and that the question of prior settlement cannot be reopened at this stage.
33. On the issue whether the Court is functus officio, the Advocate contends that following taxation and the issuance of the Certificate of Taxation, the Court became functus offico. In the absence of a reference challenging the taxation, the Court lacks jurisdiction to reopen or vary the decision. This position aligns with the principle that once a court has rendered a final determination, it cannot revisit the matter except as expressly provided by law. The taxing officer’s decision was adopted as a judgment pursuant to Section 51(2) of the Advocates Act and no reference was filed within the statutory period. Accordingly, the present application, amounts to an attempt to re-litigate matters already conclusively determined, contrary to the doctrine of functus officio and the overarching policy of finality in judicial proceedings.
34. Based on the foregoing, the Notice of Motion dated 25th November 2024 is disallowed and is dismissed with costs to the Advocate.
Orders accordingly
Delivered, Dated and Signed this 6th day of November 2025
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