Is The Application To Set Aside Merited
15.The applicants have deponed that the subject application arises from the decision of the taxing master issued in their absence and without notice to them. It is trite law that the court has unfettered discretion to set aside ex parte judgment or order made on account of default in order to provide a party a chance to canvas his case because disputes need to be determined on the merits undeterred by excusable, inadvertence, slips and mistakes. That discretion should, however, be exercised upon reasons and judiciously to ensure that a litigant does not suffer injustice or hardship, because of, amongst others, an excusable mistake or error. The discretion is designed to be exercised to achieve and meet the ends of justice so that the court does not turn its back to a litigant who clearly demonstrates such excusable mistake, inadvertence, accident or error. See CMC Holdings Limited-vs- Nzioki (2004) 1 KLR 173.
16.Where however there is demonstrated lack of notice the default order is set aside as of right and not as a matter of discretion.
17.From the onset, the application appears not to challenge merits of the decision of the taxing on the bill of costs but assert having not been made aware of the process leading up to the taxation and the service of the notice to show cause issued by the taxing master against the applicants.
18.The respondents have in fact contested service of the notice of taxation. Where a party to proceedings denies service, it is desirable and necessary that the deponent to the affidavit of service be cross-examined to establish the truth. In fact, where there is a contestation by affidavits on whether an event took place or not, the truth is only capable of being established by having the deponents of the rival affidavits being cross-examined. In Karatina Garments Limited v Nyanarua  KLR 94 the court held;
19.As agreed by consent of all parties, Habil Juma Wanyama, a process server, was brought to the stand by way of cross examination to explain how he effected service upon the applicants and was asked questions by mr. Ondieki for the clients. He said that he served the Notice one Mr. Polycarp Mukoto Muchume, a personal assistant to the 1st respondent and who accepted service on behalf of both applicants after being authorized over the phone by the 1st client/Applicant.
20.Both Dr. Khalwale and Polycarp Mukoto Muchume in separate Affidavits sworn on 29th March, 2022 denied service of any documents by the process server but when called for cross-examination both failed to attend Court without any explanation being offered. It is of note that the process server was adamant that he had known Mr Muchume as the personal assistant to the 1st client because the firm he acts for had acted the 1st applicant and Mr Muchume had visited the chambers in that known capacity.
21.Having been given a chance to have their affidavits verified by cross-examination but failed to take the stand, the court draws the adverse inference that undertaking cross-examination would have disproved the contentions in the two affidavits by the applicants.
22.It is thus the courts finding from the cross examination of the process server that he was truthful. It is found that there was due service of the notice of taxation hence there was never a denial of the right to be heard. On account of effective service alone, there is no basis to set aside.
23.However, the discretion to set aside, as said before is very wide and unfettered. In this matter even with the proved service, the court is inclined to set aside, but on terms, so that the clients have their day in court. The proceedings of 10.11.2016 together with all consequent proceedings and processes flowing therefrom are hereby set aside but on terms.
24.The conditions the court imposes are that;a.The clients shall deposit the taxed costs into an escrow account in the joint names of the advocates for the parties within 30 days from today.b.Mention before the taxing officer forthwith, and not later than 14 days from today, for purposes of taking a date for taxation.c.If there shall be failure to deposit as aforesaid, this order of setting aside shall lapse on the date of default, the application dated 29.3.2022 shall stand dismissed and the certificate of taxation shall stand reinstated with the consequence that the advocate shall be at liberty to execute.
25.On costs, even though the clients have succeeded, this is a case where the applicants occasioned the necessity of this application and the applicants should not be rewarded for their own inaction. Each party shall bear own costs.