Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed· [2021] KEELC 3419 (KLR)

Republic v Kenyatta University; Losem Naomi Chepkemoi (Ex parte) [2021] KEELC 3419 (KLR)

High Court of Kenya
26 April 2021
8,850 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

#

Kenyatta University lost its bid to delay paying legal costs and to appeal, because delays and missing evidence weakened its case.

What this practically means

#

Executive summary

#
This ruling by P. Nyamweya J of the High Court at Nairobi, delivered electronically on 26th April 2021, determined three applications arising from a judicial review judgment of 14th May 2020 ordering Kenyatta University to unconditionally re-admit the ex parte Applicant, and from a taxation ruling of 3rd December 2020 taxing the Applicant's Party and Party Bill of Costs at Kshs 571,425/=, including Kshs 500,000/= instruction fees. The Respondent filed a reference and Notice of Motion dated 17th December 2020 seeking setting aside of the taxation ruling on instruction fees, lifting of warrants of attachment, extension of time to file a Notice of Appeal and appeal, and stay of execution. The ex parte Applicant sought to set aside the interim stay granted on 21st December 2020. On competence, the Court held the Respondent's late filings admissible, citing Article 159's command of substantive justice. On extension of time, the Court held that while section 7 of the Appellate Jurisdiction Act permits the High Court to enlarge time for a Notice of Appeal, power to extend time for filing a substantive appeal rests exclusively with the Court of Appeal under Rule 4; discretion was in any event declined given a two-month unexplained delay and prejudice to the decree holder. Stay was refused: Order 42 rule 6(2) conditions were unmet, the Respondent demonstrated no substantial loss on a non-money decree, and it had used the wrong procedure to seek lifting of warrants. The reference on taxation failed as no error of principle was shown; the Judge may not re-tax a bill. All three applications were dismissed; the interim stay was vacated, with costs to the ex parte Applicant on the Respondent's applications and no order as to costs on the ex parte Applicant's application.

Key legal issues

#
01

Competence of Respondent's applications filed out of time

Holding

Applications admitted as competently filed despite late submissions, delay being reasonable (Christmas recess) and no prejudice shown

Reasoning

Article 159 of the Constitution enjoins substantive justice over procedural technicalities. The explanation of the Christmas recess and non-running of time was accepted, and the ex parte Applicant showed no prejudice as the applications proceeded to full inter-partes hearing.

p. 4
02

Jurisdiction to enlarge time for filing Notice of Appeal and appeal

Holding

High Court may extend time for a Notice of Appeal under s 7 of the Appellate Jurisdiction Act but has no jurisdiction to extend time for filing the substantive appeal; discretion declined anyway due to unexplained two-month delay and prejudice to the decree holder

Reasoning

Rule 81 defines institution of an appeal and Rule 4 of the Court of Appeal Rules reserves extension to that Court. Even as to the Notice of Appeal, the Covid-19 explanation left an unexplained gap from October to December 2020, the Respondent had participated in taxation, and the decree holder would be prejudiced.

p. 5
03

Stay of execution and lifting of warrants of attachment

Holding

Stay refused: Order 42 rule 6(2) conditions unmet; wrong procedure invoked to lift warrants; decree is for re-admission, not money, so no compensable security exists

Reasoning

The Respondent's delay was inordinate and unexplained; no substantial loss or nugatory-appeal risk demonstrated; the decree ordering unconditional re-admission is not amenable to security; and the proper routes for lifting attachment (Order 22 Rules 25, 49-50, 51-54) were not followed as the decree remains valid and unsatisfied.

p. 7
04

Reference against Taxing Officer's ruling on instruction fees

Holding

Reference dismissed: Taxing Officer applied Schedule 6A(1)(j), considered relevant factors, and Kshs 500,000/= was not manifestly excessive; failure to serve notice of objection not fatal

Reasoning

Interference requires error of principle or manifest excess (First American Bank; Joreth Ltd). The Taxing Officer correctly identified the basic fee of Kshs 100,000/= and gave reasoned grounds for increasing it; the Judge cannot re-tax. The reference was timeous and the items objected to were apparent from the reference itself.

p. 10

Legal principles established

#
  • A judge cannot interfere with a Taxing Officer's decision unless an error of principle or manifest excessiveness is shown, and cannot re-tax the bill
  • Extension of time for filing a substantive appeal in the Court of Appeal is the exclusive preserve of the Court of Appeal under Rule 4
  • Court's duty to dispense substantive justice rather than adhere to procedural technicalities justifies admitting pleadings filed out of time absent prejudice

Court orders

#
  1. 1.The Respondent's Chamber Summons and Notice of Motion both dated 17th December 2020 are dismissed with costs to the ex parte Applicant
  2. 2.The orders of temporary stay of execution granted on 21st December 2020 are vacated
  3. 3.The ex parte Applicant's application dated 13th January 2021 is dismissed with no order as to costs

Authorities

#

Legislation

  • Constitution of KenyaArticles 10, 159(1)
  • Civil Procedure ActSection 1A(3)
  • Civil Procedure RulesOrder 42 rule 6; Order 22 Rules 25, 49, 50, 51-54; Order 50 rule 5
  • Appellate Jurisdiction ActSection 7
  • Court of Appeal RulesRules 2, 4, 41, 53, 55, 76, 77, 78, 81, 115
  • Advocates (Remuneration) Order 2014Rule 11; Schedule 6A paragraph 1(j); Schedule 6(1)(j)(ii)
  • Evidence ActSection 112

Cases cited (21)

  • Charles Karanja Kiiru vs Charles Githinji Muigwa
    [2017] eKLR
  • Kamlesh Mansukhalal Damji Pattni vs Director of Public Prosecutions & 3 others
    [2015] eKLR
  • Obadiah & Others vs Dasan & Others
    (1970) EA
  • Samuel Limutai Korir vs Nyanchwa Adventist Secondary School & Anor
    (2017) eKLR
  • Edward Njane Nganga & Another vs Damaris Wanjiku Kamau & Another
    (2016) eKLR
  • Loise Chemutai Ngurule & Another vs Winfred Leshwari Kimung'en & 2 Others
    (2015) eKLR
  • First American Bank of Kenya Ltd vs Gulab P Shah & 2 Others
    (2002) 1 EA 65
  • Edith Gichugu Koine vs Stephen Njagi Thoithi
    [2014] eKLR
  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Antoine Ndiaye vs Africa Virtual University Nairobi HCCC No. 422 of 2006
  • M'ndaka Mbiuki vs James Mbaaba Mugwira
    (2010) eKLR
  • RWW v EKW
    [2019] eKLR
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] eKLR
  • National Industrial Credit Bank Ltd vs Aquinas Francis Wasike
    Nrb CA Civil Application No 238 of 2005
  • Absalom Dova vs Tarbo Transporters
    [2013] eKLR
  • R vs Kenyatta University & Anor Ex Parte Wallington Kihati Wambura
    (2018) eKLR
  • Republic vs. Ministry of Agriculture & 2 Others Ex parte Muchiri W'Njuguna & 6 Others
    (2006) eKLR
  • Nyangito & Co Advocates – Vs – Doinyo Lessos Creameries Ltd
    [2014] eKLR
  • Republic vs Commissioner of Domestic Taxes Ex-Parte Ukwala Supermarket Limited & 2 Others
    [2018] eKLR
  • Joreth Ltd vs Kigano & Associates
    (2002) 1 EA 92
  • R v Kenyatta University Ex-parte Losem Naomi Chepkemoi (JR 573 of 2017)
Jurisdiction invoked
Judicial review jurisdiction of the High Court; Civil Procedure Act (ss 1A, 63(c), Order 42 rule 6, Order 22), Appellate Jurisdiction Act s 7, Advocates Remuneration Order Rule 11

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Kenyatta University; Losem Naomi Chepkemoi (Ex parte) [2021] KEELC 3419 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3419/eng@2021-04-26

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