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ELCDismissedEnvironment and Land Miscellaneous Application 65 of 2019· [2023] KEELC 20410 (KLR)

Miller & Company Advocates v China Road & Bridge Corporation

Environment and Land Court
3 October 2023
JMJA MOGENI
1,964 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to extend time for a client to challenge a taxed legal bill because the client falsely denied receiving it.

What this practically means

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Executive summary

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The Client/Applicant, China Road & Bridge Corporation, moved the Court by Chamber Summons dated 23/05/2023 under Rules 11, 13 and 70 of the Advocates (Remuneration) Order and sections of the Advocates Act and Civil Procedure Act, seeking enlargement of time to file a Notice of Objection and reference against the Certificate of Taxation issued on 20/02/2023 in favour of Miller & Company Advocates, and to have the application admitted as a reference setting aside that certificate. The Applicant contended it was never served with the Bill of Costs, the taxation date or notice of the ruling, so its delay was not in bad faith. The Advocate/Respondent opposed through a replying affidavit, producing an affidavit of service showing the bill of costs was served at the Applicant's Hatheru Road premises on 30/05/2019, though the agent refused to sign, and correspondence showing the taxation ruling was delivered on 1/10/2019 but only confirmed by email on 9/05/2022 after the matter fell off the cause list. The court applied the established principles in County Executive of Kisumu and related authorities: extension of time is an equitable remedy requiring a satisfactory explanation of delay. Finding the Applicant was duly served and had falsely denied service, the court held no sufficient cause was shown, distinguishing Shah & Parekh where non-notification of the ruling justified extension. The application was dismissed with costs to the Advocate/Respondent.

Key legal issues

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01

Whether the court should exercise its discretion under Paragraph 11(4) of the Advocates' Remuneration Order to enlarge time for filing a notice of objection and reference

Holding

Discretion refused; the applicant was served with the bill of costs and its denial of service was untrue, so no sufficient cause for the delay was established

Reasoning

Clause 11(4) of the ARO empowers the court to enlarge time even after expiry. Applying County Executive of Kisumu, the applicant bore the burden of explaining the delay. The return of service showed the bill of costs was served at the applicant's premises, though the agent refused to sign. The applicant's blanket denial of service undermined its case, and the court would only have been inclined to grant extension had the applicant conceded receipt but lost track of the matter.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party who explains the delay and shows no prejudice to the respondent
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary favour

Court orders

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  1. 1.Application dated 23/05/2023 dismissed with costs to the Advocate/Respondent

Authorities

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Legislation

  • Advocates ActCap 16
  • Advocates (Remuneration) OrderRules 11, 13 & 70; Paragraph 11(1), (2) and (4)
  • Civil Procedure ActSections 1A, 1B, 3A & 63(e)

Cases cited (4)

  • County Executive of Kisumu v County Government of Kisumu & 8 others
    [2017] eKLR

    Principles for exercise of discretion to extend time

  • George Kagima Kariuki & 2 Others v George M. Gichimu & 2 Others
    [2014] eKLR

    Delay must be explained; plausible explanation unlocks discretionary favour

  • Stanley Kahoro Mwangi & 2 Others v Kanyamwi Trading Company Limited
    [2015] eKLR

    Same proposition on explanation of delay

  • Shah & Parekh Advocates v Kenindia Assurance Company Limited
    [2020] eKLR

    Deputy Registrar's duty to give notice of taxation ruling; failure is sufficient cause for extension

Jurisdiction invoked
Rule 11, 13 & 70 of the Advocates (Remuneration) Order; Sections 32, 40, 48 and 51 of the Advocates Act; Sections 1A, 1B, 3A & 63(e) 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, "Miller & Company Advocates v China Road & Bridge Corporation", Case Analysis (2023). Environment and Land Miscellaneous Application 65 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20410/eng@2023-10-03

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