John Okuna Ogango v Dolores N Collins & another [2022] KEELC 1584 (KLR)
The bottom line
#The High Court refused to excuse a seven-month delay in challenging a Kshs 2.2M taxation ruling, because the client never followed up and blamed an unnamed associate.
What this practically means
#Executive summary
#Key legal issues
#Timelines for filing a reference under Paragraph 11 of the Advocates Remuneration Order
A party aggrieved by a taxing decision must file a reference within 14 days from receipt of the reasons; where reasons are contained in the ruling itself, the reference should be filed immediately upon receipt of the ruling and no fresh request for reasons is necessary
Paragraph 11(1) of the Advocates Remuneration Order requires the Taxing Master to give reasons, but this requirement only applies where a comprehensive ruling has not been made. In this case the Taxing Master indicated the reasons were contained in the ruling, so the reference ought to have been filed immediately, and the court relied on Evans Thiga Gaturu and Ahmed Nassir to that effect.
Whether inadvertence of an advocate or associate constitutes sufficient cause to extend time
No - a litigant must demonstrate due diligence and follow-up efforts; blaming a nameless associate who left the firm, without more, does not warrant the exercise of judicial discretion
The court applied the principles in Salat v IEBC and Republic v Kenyatta University that extension of time is an equitable remedy available to a deserving party, conditional on proof of sufficient cause. The Applicants did not name the associate, did not say when he left, and did not follow up, so neither the advocate nor the litigant exercised due diligence.
Whether an undated replying affidavit is invalid
The court did not determine this issue; it did not adopt the Applicants' contention that the undated affidavit should be disregarded
The Applicants argued under Section 5 of the Oaths and Statutory Declarations Act and Gideon Sitelu Konchellah that the Respondent's undated affidavit was invalid. The Respondent countered under Order 19 Rule 7 of the Civil Procedure Rules that failure to date an affidavit does not invalidate it. The court's analysis does not resolve this dispute, proceeding instead to the merits of the delay explanation.
Legal principles established
#- Where the reasons for a taxation are already contained in a comprehensive ruling, there is no need to seek fresh reasons before filing a reference; the reference must be filed within the 14-day period from receipt of the ruling
- The discretion to enlarge time for filing a reference is only exercisable upon satisfactory and credible reasons for the delay, and a litigant must show due diligence in following up with their advocate
- A litigant is the principal and the advocate his agent; the client has an obligation to follow up and cannot simply blame the advocate's transgressions to benefit from the court's discretion
Court orders
#- 1.The Application dated 28th February 2020 is dismissed with costs
- Jurisdiction invoked
- Paragraph 11(4) of the Advocates Remuneration Order, 2009 (High Court's power to enlarge time for filing a reference from a taxing officer's decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Okuna Ogango v Dolores N Collins & another [2022] KEELC 1584 (KLR)", Case Analysis (2022). Not stated in judgment (Chamber Summons dated 28th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1584/eng@2022-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.