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High CourtDismissedNotice of Motion dated 14.03.2017 (Mombasa High Court)

Advocate v Client (Notice of Motion dated 14.03.2017)

High Court of Kenya
25 September 2020
POP. J. O. Otieno
1,965 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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If the advocate proves they served you the legal documents, you cannot easily overturn the judgment just by claiming you weren't properly notified.

What this practically means

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Executive summary

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The client applicant moved the High Court at Mombasa by Notice of Motion dated 14.03.2017 seeking to set aside a certificate of costs dated 18.8.2014 (issued 02.09.2014) and a judgment on costs entered on 05.10.2016 in favour of his former advocate, on grounds that the bill of costs, notice of taxation and application for judgment were never served on him, so all proceedings were ex parte and denied him a hearing. He also asserted the underlying conveyance transaction over Kwale/Diani Block/1392 was never completed and alleged a past intimate relationship with the advocate. The advocate opposed, asserting due service proved by affidavits of service, a retainer since 2005, instructions duly given, and inordinate delay since the client learned of the proceedings in 2014 when warrants of attachment issued. A former driver of the client swore an affidavit supporting service and disputing any spousal relationship. The court held that where a judgment is irregular for want of or defective service it must be set aside as of right, but found on the affidavits of service that all documents were personally served and acknowledged, requiring the applicant to prove absence or forgery, which he did not. The judgment being regular, the court considered whether a triable issue existed; holding that once a certificate of costs is final the advocate is entitled to judgment absent a dispute as to retainer, it found the client's complaint of non-completion of the transaction did not deny instructions or retainer. The application was dismissed with costs on 25 September 2020.

Key legal issues

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01

Whether lack of service rendered the taxation and judgment irregular

Holding

Service of the bill of costs, notice of taxation, application for judgment and decree was proved by affidavits of service; the judgment is regular and not open to challenge on service.

Reasoning

The court perused the record and found the bill of costs and notice of taxation served on 17.4.2014, the application for judgment filed 16.08.2016 and served 08.09.2016 with acknowledgment by the client, and the decree served in person on 22.10.2016. The applicant neither proved he was elsewhere nor that his signature was forged.

p. 2
02

Whether a triable issue was disclosed

Holding

No triable issue was disclosed; the client never denied giving instructions, only that the transaction was not completed, which does not disentitle the advocate to fees.

Reasoning

The court held that where a certificate of costs is final, the advocate is entitled to judgment unless retainer is disputed. The client's ground was non-completion of the transaction, not absence of instructions or work done, so it did not amount to a denial of retainer that would disentitle the advocate to judgment.

p. 2

Legal principles established

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  • A judgment entered without service or upon defective service must be set aside as of right, not as a matter of discretion, because it offends natural justice
  • Once a certificate of costs becomes final for want of challenge, the advocate is entitled to judgment unless there is a dispute as to retainer
  • Even where a regular judgment exists, it may be set aside if a triable issue is disclosed

Court orders

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  1. 1.The application dated 14.03.2017 is dismissed with costs
Jurisdiction invoked
Inherent jurisdiction to set aside default judgment/taxation; Advocates Act, section 51(2)

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, "Advocate v Client (Notice of Motion dated 14.03.2017)", Case Analysis (2020). Notice of Motion dated 14.03.2017 (Mombasa High Court). Source:

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