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ELCDismissedNot stated in the judgment· [2026] KEELC 2988 (KLR)

KN Mburu & Associates Advocates v Gicho (Environment and Land Miscellaneous Application E021 of 2022) [2026] KEELC 2988 (KLR)

High Court of Kenya
14 May 2026
1,067 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed WhatsApp service is valid and refused to undo a judgment where the applicant had filed no appeal or reference.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 26th May 2025 by which the applicant sought stay of an ex parte judgment, review and setting aside of that judgment, and an order that a reference on taxed costs be heard first. The underlying dispute arose from a conveyance transaction in which the respondent advocate claimed unpaid legal fees; a bill of costs was taxed on 20th March 2024 at Kshs 2,035,000 and the award was adopted as judgment ex parte. The applicant contended that the application for judgment was served on him personally rather than on his advocates on record, contrary to Order 5 rule 8, and relied on Patel v EA Cargo Handling Services Ltd. The respondent countered that service on the client was effective, that the applicant had never filed a reference against the taxing master's decision, and that the application was a delaying tactic after 15 months of inaction. The court found a sworn, uncontroverted affidavit of service by a licensed process server who effected service via WhatsApp with grey double ticks and verified the registered owner of the number. It held the applicant was duly served and bore the duty to inform his advocates. On stay, the court held that no valid appeal or reference existed on which to anchor an Order 42 rule 6 application. The notice of motion was dismissed with costs to the respondent. The judgment contains minor internal inconsistencies in dates and party designations.

Key legal issues

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01

Validity of service of the application for judgment

Holding

The applicant was duly served. A licensed court process server served the mention notice and application via WhatsApp, with acknowledgment by grey double ticks, and confirmed the phone number was registered in the client's name. The affidavit of service was uncontroverted, and the Deputy Registrar was entitled to proceed ex parte after satisfying herself on service.

Reasoning

The court examined the annexed WhatsApp screenshot, email and affidavit of service sworn by process server Jennifer Maina, who verified the registered owner of the number by sending funds to it. The applicant's assertion of non-service on his advocates did not displace this evidence, since service on the client was effective and the uncontroverted affidavit stood as proof of due service.

p. 3
02

Entitlement to stay of execution

Holding

Stay under Order 42 rule 6 was unavailable because there was no valid appeal on record and no reference challenging the taxing master's decision.

Reasoning

The court held that stay of execution must be anchored on a valid appeal. The applicant had only lodged a letter objecting to the taxed bill of costs but had never followed through to file a reference, nor filed any appeal. With no appeal or reference on record, the Order 42 rule 6 provisions could not be invoked, and the application was dismissed as a delaying tactic.

p. 3

Legal principles established

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  • An order of stay of execution under Order 42 rule 6 requires a valid appeal on record as its anchor; without an appeal or reference the stay provisions cannot apply.
  • Service effected on a client, including via WhatsApp with acknowledgement by grey double ticks, is prima facie valid service, and the client bears the duty to inform his advocate on record.

Court orders

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  1. 1.The Notice of Motion application dated 26th May 2024 is dismissed
  2. 2.Costs to the Respondent
Jurisdiction invoked
Inherent powers of the court over its own proceedings; application brought under the Civil Procedure Rules including Order 42 rule 6 on stay of execution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KN Mburu & Associates Advocates v Gicho (Environment and Land Miscellaneous Application E021 of 2022) [2026] KEELC 2988 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2988/eng@2026-05-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.