Hamilton Harrison & Mathews v Juja Coffee Exporters Limited

time. Mr. Nurein stated that thereafter, the client engaged in “without-prejudice” negotiations in an attempt to settle the matter amicably. 3. Mr. Nurein deposed that on 13th November 2019, the Advocate sought confirmation on whether the client’s Advocates had instructions to receive an application for entry of Judgment, but without serving any application, the Advocate proceeded to fix the matter for hearing, resulting in Judgment being entered on 19th December 2019. He asserted that all the impugned proceedings were conducted without Notice or an opportunity for the client to be heard, thereby violating the client’s right to a fair hearing. 4. In opposition to the application, the Advocate filed a replying affidavit sworn on 7th March 2025 by Kiragu Kimani SC, an Advocate of the High Court of Kenya and a partner in the Advocate law firm. Senior Counsel Kiragu Kimani averred that the client was at all times aware of the taxation proceedings and the subsequent Judgment and is guilty of inordinate delay, having admitted knowledge of the Judgment as far back as 13th November 2019. He contended that the client was duly served with all relevant processes, including the bill of costs, the Notice of Taxation, the Certificate of Taxation, the application for entry of Judgment and the subsequent garnishee applications. 5. Senior Counsel deposed that the Advocate was instructed to act for the client in Kericho High Court Petition No. 18 of 2018 through a letter dated 13th January 2015 and that the client failed to settle its fees, prompting the filing of the bill of costs on 24th March 2017. He highlighted various modes of service effected on the client, including postal service to its registered address, personal service at its Shimanzi premises, and email service to the client’s Manager, one Mr. John Kimeu. Senior Counsel averred that the bill of costs proceeded to taxation on various dates when the client failed to attend Court, resulting in its taxation on 18th July 2017 at Kshs.3,581,977.00 and the Certificate of Taxation was thereafter emailed to the client on 13th March 2018. 6. Mr. Kiragu Kimani (SC) explained that having received no response to inquiries made on 13th November 2019, the application for entry of Judgment was served on the client by registered mail on 9th December 2019, leading to Judgment being entered against the client in favour of the Advocate on 11th December 2019. Senior Counsel deposed that the subsequent steps taken in execution, including applications to examine the client’s Directors and garnishee proceedings, were served on the client and its Advocates, who participated in the proceedings and approved draft orders issued under Order 21 Rule 8(2) of the Civil Procedure Rules, 2010. He noted that the client’s Advocates have been on record and in communication with his firm since at least 16th July 2018 and that in a letter dated 1st August 2018, the client expressly stated that it did not intend to challenge the taxation, only disputing the quantum. Senior Counsel challenged the admissibility of various “without prejudice” correspondence relied upon by the client, asserting that such material should be expunged from the record. 7. In a rejoinder, the client filed a supplementary affidavit sworn on 9th June 2025 by Mr. Nurein Tahir Sheikh Said, one of the client’s Directors. Mr. Nurein refuted the Advocate’s assertions on service, terming them false and intentionally misleading. He stated that in March 2016, the Advocate had personally served him and other Directors of the client company with documents in Nairobi HCC No. 414 of 2017, demonstrating that the Advocate knew how to effect personal service when he wished to do so, but in this matter the Advocate resorted to serving a former Accountant, Mr. John Kimeu, despite being aware that the client had ceased operations in early 2016 and that Mr. Kimeu had left employment in December 2015. 8. Mr. Nurein added that the Process Server’s own affidavit confirmed that by April 2017, the Advocate knew the client’s operations had shut down. He contended that service by post was ineffective because the client no longer accessed its postal address, which was shared with TSS Grain Millers Limited, an https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18221/eng@2025-11-28 2

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entity placed under administration, thereby placing control of the postal address in the hands of an Administrator. He noted that the Advocate offered no explanation as to why it opted for postal service instead of attempting personal service on the client’s Directors, particularly after being informed by the client’s Advocates on 15th August 2018 that none of the documents relating to the bill of costs had been received. He observed that despite this information, the Advocate continued to rely on postal service even though the client was represented by Counsel. 9. Mr. Nurein averred that the delay in filing the instant application was due to the client’s genuine belief that the matter could be resolved amicably, as evidenced by the “without-prejudice” correspondence exchanged from 2018. He reiterated that the client has a reasonable defence to the costs claimed and now seeks an opportunity to be heard, especially since an out-of-court settlement is no longer feasible. 10. The application herein was canvassed by way of written submissions. The client’s submissions were filed by the law firm of Muriu Mungai & Company Advocates LLP on 10th June 2025, whereas the Advocate’s submissions were filed on 30th July 2025 by the law firm of Hamilton Harrison & Mathews Advocates. 11. Mr. Kongere, learned Counsel for the client cited the Court of Appeal case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR), and submitted that in determining an application to set aside a default Judgment, the Court must first ascertain whether the Judgment is regular or irregular, as this dictates the applicable principles. He stated that the applicant contended that the Judgment herein is irregular due to lack of proper service. Counsel referred to the Court of Appeal case of National Bank of Kenya Limited & another v Geoffrey Wahome Muotia [2016] KECA 608 (KLR), and argued that service upon a corporation must be effected on its Secretary, Director, or Principal Officer pursuant to Order 5 Rule 3 of the Civil Procedure Rules, 2010, and only upon demonstrated inability to reach such officers may alternative modes be used. 12. Mr. Kongere stated that the affidavits of service relied on by the Advocate reveal a farcical attempt at service, including leaving documents with an unidentified gateman, serving a person who was not a Principal Officer, and resorting to registered post without first attempting proper service. Additionally, he contended that posting Notices despite knowledge that the client had ceased operations offends the principles laid down by the Court of Appeal in the case ofDelphis Bank Limited v Praful Natwarlal Shavdia, Virendra Natwarlal Shavdia & Pioneer Stationers Limited [2005] KECA 102 (KLR). Counsel asserted that the proceedings conducted without proper Notice are a nullity and must be set aside as of right, without regard to delay. 13. Mr. Kongere noted that even if the impugned Judgment was regular, the delay in filing the application herein was occasioned by ongoing negotiations between the parties herein, supported by correspondence whose production is permissible solely to demonstrate the fact of negotiations as upheld by the Court in Ipomai v Sanlam Kenya Limited [2024] KEELRC 1521 (KLR). Counsel submitted that the client has raised a bona fide triable issue regarding the award of Kshs.3,581,977.00 as instruction fees for a Constitutional Petition that was summarily dismissed, notwithstanding the statutory base fee of Kshs.100,000/=. He asserted that the Advocate will not suffer undue prejudice, as any delay is compensable by interest. 14. Mr. Kiragu Kimani (SC), learned Counsel for the Advocate submitted that the client’s reliance on Nairobi HCCC No. 414 of 2017 is irrelevant, as it involves a different client and distinct circumstances. Senior Counsel maintained that the bill of costs and Notice of Taxation were both served upon the client by registered post to its postal address as listed in the Companies’ Registry and physically at its registered office in Shimanzi, which the client has not disputed. He contended that allegations that Mr. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18221/eng@2025-11-28 3

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John Kimeu was no longer employed are contradicted by email evidence confirming his authority to receive correspondence on behalf of the client. 15. Mr. Kiragu Kimani (SC) argued that service by registered post and physical delivery was proper and reasonable under Order 5 Rule 3 of the Civil Procedure Rules, and consistent with established legal principles as affirmed by the Supreme Court in the case of Koinange Investments & Development Ltd v Ngethe [2014] KESC 19 (KLR) and the case of TNT Express Worldwide (K) Limited v Elsek & Elsek (K) Limited [2012] KEHC 2074 (KLR). He maintained that the client’s allegations regarding cessation of operations and non-receipt of Notices are unsupported by documentary evidence. Further, that the client has continued to trade and collect rent from the properties it owns, contradicting its claims of operational inactivity. 16. Senior Counsel maintained that the client had full knowledge of the taxation and Judgment, thus the delay of over seven (7) years in filing the application herein is excessive, unexplained, and unjustified. In addition to the foregoing, Mr. Kiragu Kimani (SC) argued that the application herein is an abuse of the Court process, motivated by the imminent enforcement of garnishee orders, and that the assessment of fees was within the Taxing Officer’s discretion. Analysis and Determination. 17. I have considered the application herein, the grounds on the face of the Motion and the affidavits filed in support thereof, the replying affidavit by the Advocate and the written submissions by Counsel for the parties. The issue of determination is whether the ex parte Judgment and Certificate of Taxation should be set aside, and if the Advocate’s bill of costs should be re-taxed afresh. 18. This Court’s jurisdiction to set aside an ex parte Judgment is derived from the provisions of Order 10 Rule 11 of the Civil Procedure Rules, 2010, which states as follows – Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just. 19. While this Court has the discretion to set aside an ex parte Judgment, such discretion is meant to prevent injustice or hardship arising from accident, inadvertence, or an excusable mistake. It is however not intended to aid a party who has deliberately attempted whether by evasion or other means, to obstruct or delay the course of justice, as was held by the Court in the case of Shah v Mbogo & Another [1967] EA 116 at page 123. 20. The client’s case is that the Judgment delivered on 19th December 2019, the taxation conducted on 12th July 2017 together with the resulting Certificate of Taxation issued on 5th October 2017 should be set aside and an order directing re-service and fresh taxation of the Advocate’s bill of costs dated 24th March 2017 before a different Taxing Officer be granted. The client’s case is premised on the grounds that the Advocate did not serve the client with the bill of costs and all related documents. The client averred that the purported service of the said documents was ineffective, asserting that the Advocate deliberately served a former Accountant, Mr. John Kimeu, despite the client having ceased operations in early 2016 and the said Mr. Kimeu having left the client’s employment in December 2015. The client further averred that service via registered post was ineffective because the postal address was shared with another entity under administration, and that the delay in filing the application herein was due to ongoing “without-prejudice” negotiations aimed at settling the matter amicably. 21. The Advocate on the other hand asserted that the client was duly aware of the taxation proceedings and Judgment, having been served via multiple channels including registered post to the client’s registered address, physical service at the client’s Shimanzi office, and via email to the client’s Manager, Mr. John https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18221/eng@2025-11-28 4

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Kimeu. The Advocate demonstrated by production of several affidavits of service that the client’s registered office and postal address were valid and accessible, and that Mr. Kimeu acted on behalf of the client in correspondence with the Advocate even after allegedly leaving the client’s employment, thereby establishing knowledge and receipt of the Notices. The Advocate argued that the client’s claim of improper service contradicts its own conduct, including engaging in negotiations and later participating in garnishee proceedings. The Advocate maintained that the amount of the taxed costs was properly determined by the Taxing Officer. 22. Service of documents and/or pleadings on a corporation is provided for under the provisions of Order 5 Rule 3 of the Civil Procedure Rules, 2010, which provides that Subject to any other written law, where the suit is against a corporation the summons may be served a. on the secretary, director or other principal officer of the corporation; or b. if the process server is unable to find any of the officers of the corporation mentioned in rule 3(a) i. by leaving it at the registered office of the corporation; ii. by sending it by prepaid registered post or by a licensed courier service provider approved by the court to the registered postal address of the corporation; or iii. if there is no registered office and no registered office or physical address of the corporation, by leaving it at the place where the corporation carries on business; or iv. by sending it by registered post to the last known postal address of the corporation. 23. In this case, it is not disputed that the Advocate effected service of the bill of costs and all related taxation proceedings via registered post, and by leaving documents at the registered office of its client, and also by effecting personal service on the client’s Manager, Mr. John Kimeu, at the client’s offices. Notably, the client has not disputed that the postal address to which service of the taxation proceedings was sent belongs to it, but claims the said address is shared with another company currently under liquidation, thus the said postal address is under the control of the Administrator. 24. The client having acknowledged ownership of the postal address to which service of the taxation proceedings was sent, it was under a duty to check the said postal address and ascertain whether there was any correspondence addressed to it that required its attention. Failure to do so cannot be blamed on the Advocate. In addition, in the affidavit of service produced by the Advocate sworn on 22nd May 2017 by Mr. Fidelis Omari Abere, a Process Server employed by the Advocate law firm, it is evident that Mr. Abere averred that he served a Taxation Notice dated 3rd May 2017 and an Advocate’s bill of costs dated 24th March 2017 on Mr. Kimeu at the client’s offices, who acknowledged service but declined to sign on his copies on the advice of the client’s lawyers. 25. It is noteworthy that the client has not challenged the contents of the said affidavit of service or sought to examine the said Process Server on the correctness of the contents of his affidavit of service. Additionally, the mere fact that the said Mr. Kimeu was at the client’s registered offices at the time service was effected, controverts the client’s contention that the said Mr. Kimeu ceased to be an employee of the client company in December 2015. The above notwithstanding, even if Mr. Kimeu https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18221/eng@2025-11-28 5

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was no longer an employee of the client company, service at the registered office to someone in possession of the corporation’s office is still valid under Order 5 Rule 3 of the Civil Procedure Rules, 2010. It is evident that although the client claims that it ceased operations in early 2016 and that Mr. Kimeu had left employment in December 2015, no evidence has been tendered in support of the said averments. 26. Accordingly, on the totality of the evidence adduced, this Court is satisfied that the Advocate effected service on the client in accordance with Order 5 Rule 3 of the Civil Procedure Rules. Further, the client’s reliance on prior personal service in an unrelated matter is immaterial, as the disputed service must be evaluated based on the circumstances of this case. In addition, the delay of more than five (5) years in challenging the impugned Judgment and taxation is inordinate and unjustified especially since the client had knowledge of the impugned Judgment and the taxation proceedings. The correspondence regarding settlement negotiations does not excuse the delay, particularly when the Advocate had taken lawful steps to enforce its fees. Moreover, other than claim it has a triable defence to the Advocates’ bill of costs, the client has not shown any triable issue that would warrant the setting aside of the impugned Judgment or taxation. 27. In light of the above, this Court finds that the instant application is devoid of merits. It is hereby dismissed with costs to the Advocate. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 28TH DAY OF NOVEMBER 2025. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. NJOKI MWANGI JUDGE In the presence of:Mr. Kongere for the client/applicant Ms Mwangi h/b for Mr. Kiragu Kimani (SC) for the Advocate/respondent Ms Murage for the garnishee Ms B. Wokabi – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18221/eng@2025-11-28 6

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