Rozaah Akinyi Buyu v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 264 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that judges can extend time to challenge taxed costs even after unexplained delay, when justice demands it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the single judge (Murgor, JA) misdirected herself in extending time for the judgment debtor to file a Reference against the taxation of the bill of costs
- 2.Whether unexplained inordinate delay disentitled the applicant from an extension of time
- 3.Whether the court should interfere with the exercise of the single judge's unfettered discretion under Rule 4
Key legal issues
#Whether the single judge erred in extending time despite unexplained delay
No error. The judge considered the delay, found it unexplained, but weighed the failure to notify the applicant of the ruling date, the absence of a certified copy, the absence of prejudice, and the pendency of the decree holders' own Reference.
The court held that extension of time is discretionary and that unexplained delay does not fetter that discretion where justice requires. The judge had correctly stated the guiding principles and referred to relevant authorities. Because the decree holders had themselves filed a Reference against the same taxation, no prejudice would accrue, and it would be inequitable to deny the judgment debtor a chance to seek reduction of the same taxed costs that the decree holders sought to increase.
Standard of interference with a single judge's discretion on Reference
The full court does not substitute its own discretion; it interferes only where the judge failed to exercise discretion judicially.
The court reiterated that in a Reference against a single judge's discretionary decision, the correct approach is to examine whether the judge misdirected herself or took into account irrelevant factors. Here the judge correctly stated the principles, considered the delay and the interest of justice, and exercised her discretion judicially, so there were no good grounds for interference.
Legal principles established
#- The discretion to extend time, though unfettered, must be exercised judicially, and a full court on Reference does not substitute its discretion for that of the single judge; it interferes only where the discretion was not exercised judicially.
- Unexplained delay is not an absolute bar to extension of time; where the interests of justice so require, delay need not disentitle an applicant.
Court orders
#- 1.The Reference is dismissed
- 2.The costs of the Reference shall abide the decision on the respective References against the taxation of the bill of costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (Single Judge, Kisumu)
- Civil Appeal No. 40 of 2013
- Jurisdiction invoked
- Rule 55(1) of the Court of Appeal Rules (Reference to full Court against a decision of a single judge)
Relief refused
#The decree holders' application for costs of the Reference against the judgment debtor
Costs of the Reference were deferred to abide the outcome of the pending References on taxation
Costs
The costs of this Reference shall abide the decision on the respective References against the taxation of the bill of costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The fact that there was unexplained delay in bringing the application did not disentitle or fetter discretion of the learned judge from extending time.
In our view, it would not be in the interest of justice to deny the judgment debtor an opportunity to seek the reduction of the taxed costs while the decree holders are rightly to be heard on the Reference to increase the same taxed costs.
For the foregoing reasons, we find that the learned judge exercised her discretion judicially and that there are no good reasons for interfering with the decision of the learned judge.
Accordingly, the Reference is dismissed. The costs of this Reference shall abide the decision on the respective References against the taxation of the bill of costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rozaah Akinyi Buyu v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 264 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 40 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/264/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.