Republic v Kenyatta University; Losem Naomi Chepkemoi (Ex parte) [2021] KEELC 3419 (KLR)
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
#Key legal issues
#Competence of Respondent's applications filed out of time
Applications admitted as competently filed despite late submissions, delay being reasonable (Christmas recess) and no prejudice shown
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.
Jurisdiction to enlarge time for filing Notice of Appeal and appeal
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
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.
Stay of execution and lifting of warrants of attachment
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
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.
Reference against Taxing Officer's ruling on instruction fees
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
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.
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.The Respondent's Chamber Summons and Notice of Motion both dated 17th December 2020 are dismissed with costs to the ex parte Applicant
- 2.The orders of temporary stay of execution granted on 21st December 2020 are vacated
- 3.The ex parte Applicant's application dated 13th January 2021 is dismissed with no order as to costs
- 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.