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ELCDismissedChamber Summons application dated 17th December 2019 (Miscellaneous)· [2021] KEELC 1147 (KLR)

Okoth and Company Advocates v Mount Kenya University [2021] KEELC 1147 (KLR)

High Court of Kenya
3 November 2021
LMLucy N. Mbugua
2,255 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed an advocate's bid for extra time to challenge a taxing decision, ruling that extension of time must be earned, not demanded.

What this practically means

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Executive summary

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The applicant, an advocate, sought by Chamber Summons dated 17th December 2019 an extension of time to file a reference against the decision of the Taxing Officer, Hon. I. N. Barasa, delivered on 4th December 2017, in which the applicant's Bill of Costs of Kshs. 60,864,390 was disallowed. The applicant contended that the taxing officer declined to tax the bill without giving reasons, that reasons requested on 18th December 2017 were never supplied, and that the delay was excusable because the applicant had pursued a reference in Miscellaneous Application No. 23 of 2018, which was struck out on 7th November 2019 as filed in the wrong cause. The respondent, through its Director of Administration, maintained that the taxing officer's ruling articulated the reasons for disallowing the bill, that the applicant had been indolent, and that the application was an abuse of process. The court framed a single issue: whether the applicant had made a compelling case for enlargement of time. Relying on paragraph 11(4) of the Advocates Remuneration Order, section 95 of the Civil Procedure Act, and the Supreme Court's principles in Salat v IEBC, the court read the taxing officer's ruling and found it set out reasons on its face, so no further reasons needed to be sought. The applicant's delay was therefore self-inflicted, amounting to going round in circles and forum shopping. The application was dismissed in totality with costs to the respondent.

Key legal issues

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01

Whether the applicant made a compelling case for enlargement of time to file a reference against the Taxing Officer's decision

Holding

The application was dismissed; the applicant failed to demonstrate entitlement to extension of time

Reasoning

The court read the taxing officer's ruling of 4th December 2017 and found it undoubtedly set out the reasons for the decision, so the applicant could have filed a reference without requesting further reasons. The applicant's delay was attributed to pursuing the wrong cause in Misc. Application No. 23 of 2018. Applying the Salat principles, the court found no equitable basis laid for extension, concluding the applicant was going round in circles and forum shopping.

p. 3

Legal principles established

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  • Extension of time is not a right of a litigant but a discretionary power of the courts, and the litigant must lay a basis that they were not at fault
  • Where reasons appear on the face of the taxing officer's decision, it is futile to expect the taxing officer to furnish further reasons before filing a reference

Court orders

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  1. 1.The application dated 17th December 2019 is dismissed in totality
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Advocates Remuneration OrderParagraph 11(1), (2), (3), (4)
  • Civil Procedure ActSection 95
  • Advocates ActSections 45(1) and 45(6)
  • Court of Appeal Rules, 2010Rule 4

Cases cited (17)

  • Vishva Stones Suppliers Company Ltd v. RSR Stone
    [2020] eKLR, Nairobi Court of Appeal Civil Application No. 55 of 2020
  • Addax Kenya Limited v. National Environment Management Authority & Another
    [2017] eKLR
  • Jubilee Insurance Co. Ltd v John Njeru Kariuki
    [2014] eKLR
  • Purity Gathoni Githae & Another v Excelo Structures Ltd & Another
    [2018] eKLR, Nairobi ELC No. 406 of 2008
  • Cecilia Wanja Waweru v Jackson Wainaina Muiruri & Another
    [2014] eKLR
  • Prabhulal Tejpal Haria & Another v Pravinshandra Meghji Dodhia & 2 others
    [2021] eKLR
  • Evans Gaturu Advocate v Kenya Commercial Bank Ltd
    [2012] eKLR
  • Ahmed Nasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd
    [2006] EA
  • Odhiambo Owiti & Co. Advocates v Emmanuel Otieno
    [2021] eKLR
  • Joel Tirop Busienei v David Randichi
    [2016] eKLR
  • Gachuhi Muthanji v Mary Njuguna
    [2014] eKLR
  • Otieno Ragot & Company v National Bank of Kenya Limited
    (2018) eKLR
  • D.N. Njogu & Co. Advocates v National Bank of Kenya Limited
    [2016] eKLR
  • Dilpack Kenya Ltd v William Muthama Kitonyi
    [2018] eKLR
  • First American Bank of Kenya Ltd v Gulab P. Shah & 2 Others
    [2002] 1 EA 65
  • Evans Thiga Gaturu, Advocate v Kenya Commercial Bank Limited
    [2012] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
Jurisdiction invoked
Paragraph 11(4) of the Advocates Remuneration Order and Section 95 of the Civil Procedure Act

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, "Okoth and Company Advocates v Mount Kenya University [2021] KEELC 1147 (KLR)", Case Analysis (2021). Chamber Summons application dated 17th December 2019 (Miscellaneous). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1147/eng@2021-11-03

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