Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedChamber Summons application dated 22nd October 2019· [2020] KEELC 1770 (KLR)

Patricia Bini v Melina Investment Ltd & 3 others [2020] KEELC 1770 (KLR)

Environment and Land Court
10 July 2020
JOJ.O. Olola
1,217 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Malindi gave a foreign-based party extra time to challenge a taxing officer's ruling, but made them pay costs for the delay.

What this practically means

#

Executive summary

#
By a Chamber Summons dated 22nd October 2019, the Defendants sought extension of time to file a reference against a ruling of the Deputy Registrar (Taxing Officer) of 20th December 2018 striking out their party and party Bill of Costs dated 9th April 2018 as defective, and sought setting aside of that ruling, remittal to another taxing master, and deeming of the reference as properly filed. The application was supported by an affidavit of the 2nd Defendant, Giuseppino Valsesi, who explained the delay on the ground that the Defendants reside and work in Italy and had lost contact with their advocates, only learning of the ruling on returning to Kenya on 23rd September 2019. The Plaintiff opposed, contending the application was an afterthought and an abuse of process, arguing that residence abroad is no excuse in a global digital village. Justice Olola applied the factors in Mwangi v Kenya Airways Ltd (2003): length and reason for delay, arguability, prejudice, importance of compliance with time limits and effect on administration of justice. He noted counsel had promptly sought reasons for the ruling within a day, and that the application was filed within a month of the clients' return, holding the delay neither inordinate nor inexcusable. He held the intended reference arguable, the threshold being arguability rather than probability of success, and saw no substantial prejudice to the respondent. The court granted Prayer 1 only, enlarging time with the reference to be filed within 14 days, and ordered the Defendants to bear the costs of the application. The remaining prayers were not granted.

Key legal issues

#
01

Whether the nine-month delay in filing the reference was inordinate and inexcusable

Holding

The delay was not inordinate or inexcusable given counsel's prompt request for reasons and the clients' absence abroad

Reasoning

Counsel wrote to the Deputy Registrar a day after the ruling seeking reasons, as the Rules require. The clients reside and work in Italy and were out of communication; within one month of their return they filed the application. The court accepted this explained the delay.

p. 2
02

Whether the intended reference is arguable

Holding

The reference was not inarguable; arguability, not probability of success, is the threshold

Reasoning

Applying the Mwangi v Kenya Airways factors, the court examined the grounds of the intended reference against the Court of Appeal decision and found plausible grounds of fact or law. No substantial prejudice to the respondent was identified beyond permitting the exercise of the right of appeal.

p. 2

Legal principles established

#
  • Extension of time is discretionary, not a right, and must be exercised judiciously on sufficient material
  • An applicant for extension of time need only show arguability, not a high probability of success

Court orders

#
  1. 1.Prayer No. 1 of the Chamber Summons granted - time enlarged to file the reference, to be filed within 14 days
  2. 2.Defendants/Applicants to bear the costs of the application

Authorities

#

Cases cited (2)

  • Mwangi –vs- Kenya Airways Ltd
    (2003)
  • Patricia Bini –vs- Melina Investments & 3 Others
    Civil Appeal No. 54 of 2015
Jurisdiction invoked
Discretionary power to enlarge time for filing a reference against a Taxing Officer's decision

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Patricia Bini v Melina Investment Ltd & 3 others [2020] KEELC 1770 (KLR)", Case Analysis (2020). Chamber Summons application dated 22nd October 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1770/eng@2020-07-10

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