David Pius Mugambi v Leonard Ondari Advocate
The bottom line
#Kenya's High Court allowed an unexplained nine-month delay in challenging a taxed costs certificate because it raised a jurisdictional question of public importance.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant explained the delay of over nine months in seeking leave to file the reference out of time
The delay was not adequately explained: the applicant did not state when he became aware of the certificate of stated costs, when the ruling was due, or what follow-ups he made; however, leave was granted because the matter raised a jurisdictional question of public importance and the respondents showed no prejudice
The court reviewed the extension-of-time principles from Salat, Wanjohi Mathenge, Jaber Mohsen Ali and County Executive of Kisumu, noting the applicant failed to declare and explain the whole period of delay. Nonetheless, it held the jurisdictional issue raised was of public importance and the respondents demonstrated no prejudice and did not show they had paid the assessed costs.
Whether a court without jurisdiction can tax or assess costs flowing from proceedings withdrawn for lack of jurisdiction
The court found this a fundamental question of public importance warranting that leave be granted so the reference could be argued
The applicant submitted that the parcels of land in the underlying suit exceeded the Principal Magistrate's pecuniary jurisdiction under Sections 7 and 9 of the Magistrates' Act, rendering the taxation and certificate of costs a nullity. The court observed the applicant had raised a fundamental point and held that issue to be of public importance, tilting the discretion in favour of granting leave.
Legal principles established
#- Extension of time is a discretionary power of the court, not a right of a party, exercised case by case in the interest of justice
- The whole period of delay must be declared and satisfactorily explained, with the burden lying on the applicant
- There is no minimum or maximum period of delay, but a plausible and satisfactory explanation is required for the discretion to be exercised favourably
- The value of the subject matter for taxation of a bill of costs is determined from the pleadings, judgment or settlement; failing that, the taxing master may use his discretion
Court orders
#- 1.Leave granted to the applicant to file a reference out of time against the certificate of stated costs dated February 3, 2023
- 2.The reference to be filed within seven days from the date of the ruling
- 3.Costs of the application to the respondents
- Jurisdiction invoked
- Rule 11(1) & (4) of the Advocates Remuneration Order, read with Sections 1A & 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Pius Mugambi v Leonard Ondari Advocate", Case Analysis (2024). Not stated in the judgment (application for leave to file a reference out of time arising from Nkubu PMC ELC No. 81 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1726/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.