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ELCPartially AllowedELC Miscellaneous Application (Chamber Summons dated 10th May, 2021 and Notice of Motion dated 11th May, 2021)· [2021] KEELC 2449 (KLR)

Nkama Group Ranch & 8 others v Jeremiah Ole Risa [2021] KEELC 2449 (KLR)

Environment and Land Court
26 July 2021
2,932 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave a client 14 more days to challenge a Kshs 4.3 million taxed costs bill, but refused to block its collection while the appeal continues.

What this practically means

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Executive summary

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Before the Environment and Land Court at Kajiado were two interlocutory applications by the Applicants: a Chamber Summons dated 10th May, 2021 and a Notice of Motion dated 11th May, 2021. The Applicants, against whom costs of Kajiado ELC No. 667 of 2017 had been taxed at approximately Kshs. 4.3 million by the Deputy Registrar on 29th March, 2021, sought enlargement of time to file a reference against the taxation, setting aside of the taxing decision and re-taxation, and a stay of execution of the Certificate of Costs dated 26th April, 2021, citing a 40-day delay occasioned by counsel's oversight, closure of the Kajiado registry and misplacement of the file. The Respondent opposed, contending the delay was unexplained, that the applicants had already sought stay in the Court of Appeal in Civil Appeal No. E 416 of 2020 without disclosing the outcome, and that no substantial loss or security was demonstrated. The court framed two issues. On enlargement of time, relying on clause 11(4) of the Advocates Remuneration Order and Peter Julius Njoroge v Fidelity Commercial Bank, the court found the 41-day delay not inordinate given the applicants' follow-up emails and enlarged time, directing that the objection and reference be filed within 14 days. On stay, the court held the applicants had not demonstrated substantial loss to the Group Ranch, offered no security, and that having lodged an appeal in the Court of Appeal, the stay application belonged there under Rule 5(2)(b). The Notice of Motion was disallowed with costs; the Chamber Summons partially succeeded; the earlier stay orders were vacated; costs of both applications were awarded to the Respondent.

Key legal issues

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01

Enlargement of time to file a reference against a taxing officer's decision

Holding

The 41-day delay was excused as not inordinate given the applicants' follow-up emails and non-response from the court registry

Reasoning

Clause 11(4) of the Advocates Remuneration Order empowers the court to enlarge time even after expiry. The applicants' counsel demonstrated through emails dated 31st March, 6th April and 19th April 2021 that they pursued the ruling before the objection period lapsed but received no response. Following Peter Julius Njoroge v Fidelity Commercial Bank (45-day delay held not inordinate), the court found a good reason for the failure and enlarged time, directing lodging of the objection and reference within 14 days.

p. 3
02

Stay of execution of the Certificate of Costs pending appeal

Holding

Refused; the applicants failed to demonstrate substantial loss or offer security, and the application lay in the Court of Appeal

Reasoning

Under Order 42 Rule 6(2), an applicant must show substantial loss, absence of unreasonable delay, and provide security. The applicants did not demonstrate what loss the 1st Applicant (a Group Ranch) stood to suffer, offered no security, had already sought stay in the Court of Appeal in Civil Appeal No. E 416 of 2020 without disclosing the outcome, and having lodged an appeal, stay should have been sought there under Rule 5(2)(b) of the Appellate Jurisdiction Act.

p. 3

Legal principles established

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  • The Court has discretion under clause 11(4) of the Advocates Remuneration Order to enlarge time for filing an objection/reference even after expiry, and a delay of about 41-45 days with a reasonable explanation is not inordinate
  • Where an appeal has been lodged in the Court of Appeal, an application for stay of execution pending that appeal should be made in the Court of Appeal under Rule 5(2)(b)

Court orders

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  1. 1.Time enlarged for the Applicants to file and serve the Application and Reference out of time from the Ruling of the Deputy Registrar delivered on 29th March, 2021
  2. 2.Applicants directed to lodge an objection as well as a Reference within 14 days from the date of the ruling
  3. 3.Notice of Motion dated 11th May, 2021 disallowed
  4. 4.Orders of stay of execution on costs earlier granted vacated
  5. 5.Respondent awarded the costs of the two applications

Authorities

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Legislation

  • Advocates Remuneration OrderClause 11
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Appellate Jurisdiction Act (Court of Appeal Rules)Rule 5(2)(b)

Cases cited (13)

  • G4S Security Limited & Another v Joseph Kinyua Ngore
    (2018) eKLR
  • Fahim Yasin Twaha v Timamy Issa Abdalla & 2 Others
    (2015) eKLR
  • G N Muema (sic) Mt View Maternity & Nursing Home v Miriam Maalim Bishar & Another
    (2018) eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    (2012) eKLR
  • Stanley Kangether Kinyanjui v Tony Ketter & Others
    (2013) eKLR
  • Jaber Mohsen Ali & Another v Priscillah Boit & Another
    (2014) eKLR
  • Focin Motorcycle Co. Limited v Anne Wambui Wangui & Another
    (2018) eKLR
  • Sound Entertainment Limited v Antony Burungu & Co. Advocates
    (2014) eKLR
  • Stanley Kahoro Mwangi & Another v Kanyamwi Trading Company Limited
    (2015) eKLR
  • Evans Thiga Gaturu Advocate v Kenya Commercial Bank Limited
    (2012) eKLR
  • Prabhulal Tejpal Haria & Another v Pravindshandra Meghji Dodhia & 2 Others
    (2021) eKLR
  • Peter Julius Njoroge v Fidelity Commercial Bank Limited & Another
    (2018) eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
Jurisdiction invoked
Clause 11 of the Advocates Remuneration Order (power of the High Court to enlarge time) and Order 42 Rule 6(2) of the Civil Procedure Rules

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, "Nkama Group Ranch & 8 others v Jeremiah Ole Risa [2021] KEELC 2449 (KLR)", Case Analysis (2021). ELC Miscellaneous Application (Chamber Summons dated 10th May, 2021 and Notice of Motion dated 11th May, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2449/eng@2021-07-26

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