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Court of AppealAllowedApplication dated 19th May 2011 (arising from Nakuru High Court Civil Case No. 65 of 2006)

Teachers Service Commission v Simon P Kamau & 19 Others [2011] KECA 227 (KLR)

Court of Appeal of Kenya
10 June 2011
SBS.E.O. Bosire
907 words in judgment
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The bottom line

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Kenya's Court of Appeal gave the Teachers Service Commission seven more days to challenge a Kshs 382.6 million taxed costs award, despite its unexplained delay.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Bosire JA on an application by the Teachers Service Commission for extension of time to file a reference under rule 112(3) of the Court Rules against a taxation of costs. The appellant's appeal against the decision of Maraga J. in Nakuru High Court Civil Case No. 65 of 2006 had been dismissed, and the respondents' bill of costs was taxed on 4th April 2011 at Kshs. 382,600,000. The appellant did not file the reference within the seven days prescribed by rule 112(3), and moved the court under rules 4, 108, 111 and 112 and section 3 of the Appellate Jurisdiction Act. The judge held that rules 108 and 111 were inapplicable, since the court was not asked to assess or tax costs, and that the application lay under rule 4. Although the appellant failed to explain the delay and its counsel was indolent, the court found the delay long but not inordinate, noted ongoing negotiations on costs, and considered the colossal sum taxed to be cause for a reference. Applying Ainly J's observation in Jamnadas v. Gordhaudas Hemraj that it is a serious matter to deny a subject a hearing, the judge exercised his unfettered discretion to allow the application and extend time by seven days, while awarding the costs of the motion to the respondents. The ruling is interlocutory and procedural; it does not disturb any decision below.

Key legal issues

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01

Discretion to extend time for filing a reference against a taxation

Holding

The discretion under rule 4 is unfettered and was exercised in favour of hearing the costs issue on the merits despite unexplained delay, because the taxed costs were colossal

Reasoning

The court noted that the appellant failed to explain the delay in filing the reference and that its counsel was indolent, since filing a reference requires no serious effort. Nonetheless, the figure taxed (Kshs. 382,600,000) was so colossal that it provided cause for a reference. Weighing the circumstances as a whole, including ongoing negotiations between the parties on costs, the judge excused the delay, holding the delay long but not inordinate, and extended time by seven days.

p. 2
02

Inapplicability of rules 108 and 111 to the application

Holding

Rules 108 and 111, which concern assessment and taxation of costs, had no application because the court was not being asked to assess costs or direct taxation

Reasoning

The application sought only an extension of time to file a reference. Rule 108 confers power to assess costs or direct taxation and rule 111 appoints the Registrar as Taxing Officer; neither power was invoked. Only rule 4, which donates the power to extend time for doing any act authorised or required by the Rules, was relevant to the motion.

p. 1

Legal principles established

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  • An applicant for extension of time must lay material before the court to enable it exercise its discretion, including an explanation of the cause and length of the delay
  • There is no closed list of factors for an extension-of-time application; the judge considers the circumstances of each case as a whole

Court orders

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  1. 1.Time extended by seven days within which to file a reference under rule 112(3)
  2. 2.Costs of the motion dated 19th May 2011 awarded to the respondents
On appeal from
High Court of Kenya at Nakuru
Civil Case No. 65 of 2006
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and section 3 of the Appellate Jurisdiction Act, Cap 9

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, "Teachers Service Commission v Simon P Kamau & 19 Others [2011] KECA 227 (KLR)", Case Analysis (2011). Application dated 19th May 2011 (arising from Nakuru High Court Civil Case No. 65 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/227/eng@2011-06-10

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