Kagwimi Kang’ethe & Company Advocates v A A Kawir Transporters Limited [2014] KEELC 20 (KLR)
The bottom line
#Kenya's High Court ruled that clients can get extra time to challenge a Taxing Master's costs decision if they have a genuine reason, even after months of delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the nine-month delay in filing the Notice of Objection was excusable
Yes - the delay was excusable because the Respondent was unaware of the ruling date, the court file was unavailable, and the Applicant himself was challenging the same items of the Bill; prejudice is compensable in costs.
The court weighed the period of delay, reasons for delay and prejudice. The ruling was delivered in the absence of both parties without notice to the Respondent; the file could not be traced in the registry or typing pool for months. The Advocate's sluggishness was noted but the delay of three and a half months after accessing the file was not so inordinate as to lock out the Respondent, especially since the Applicant himself seeks review of the same items.
What constitutes inordinate delay
There is no precise measure; inordinate delay is case-specific, and good reason for non-action removes the excessiveness of the delay.
Adopting Gikonyo J in Mwangi S. Kimenyi v Attorney General, the court held that 'inordinate' should be applied in the sense of excessive as compared to normality, not its dictionary meaning, and assessed against the circumstances, subject matter, nature of the case and explanation given. Delays of five to eight months and more have been held not inordinate in prior cases.
Whether promptness under paragraph 11(1) is mandatory
No - paragraph 11(1) does not make promptness a mandatory requirement, and litigants should only be locked out in obvious, contumacious breaches causing unmitigated prejudice.
The court read paragraph 11(1) of the Advocates (Remuneration) Order as not imposing promptness as a mandatory requirement. The general trend is to lock out litigants only in very obvious and contumacious cases of breach of rules leading to unmitigated prejudice; here any prejudice to the Applicant could be compensated in costs.
Legal principles established
#- Inordinate delay is assessed case by case; if there is good reason for non-action, a delay is no longer inordinate in the sense of excessive or unwarranted.
- The main factors in an extension-of-time application are the period of delay, reasons for delay and degree of prejudice.
- Judgments and rulings ought to be pronounced in open court in the presence of the parties, not in empty courtrooms.
Court orders
#- 1.Prayer 1 of the application dated 26th August 2014 allowed - extension of time granted
- 2.The Respondent to file its Notice of Objection within the next three working days
- 3.The Respondent to file and serve its application for review within the next twenty one (21) days
- 4.Costs of the application for extension of time awarded to the Applicant/Advocate
- Jurisdiction invoked
- Paragraph 11(4) of the Advocates (Remuneration) Order - discretionary power to extend time for filing a Notice of Objection
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kagwimi Kang’ethe & Company Advocates v A A Kawir Transporters Limited [2014] KEELC 20 (KLR)", Case Analysis (2014). HCC Misc. Application No. 420 of 2013 (consolidated with No. 419 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/20/eng@2014-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.