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ELCAllowedNot stated in the judgment text· [2024] KEELC 5730 (KLR)

Kavithi v Attorney General & 6 others (Environment & Land Case 1368 of 2013) [2024] KEELC 5730 (KLR)

High Court of Kenya
18 July 2024
3,202 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's High Court allowed a two-day-late objection to a Kshs. 631,637 taxed costs ruling, granting stay conditional on depositing the money in a joint account.

What this practically means

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Executive summary

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This was a ruling on the plaintiff/applicant's Notice of Motion dated 5 March 2024 in a first-instance matter before the High Court at Nairobi (Mogeni J), arising from the taxation on 7 February 2024 of the 5th to 7th defendants' Party and Party Bill of Costs dated 5 June 2023 at Kshs. 631,637. The applicant, the estate of the deceased, sought leave to file a Notice of Objection to Taxation out of time, a stay of execution of the taxing master's ruling pending a reference, and fourteen days to file the reference. The applicant's advocate attributed the late filing (two days beyond the deadline) to attendance at an arbitration training. The 5th to 7th respondents opposed, arguing through a replying affidavit of the 7th defendant that the suit had abated and been dismissed, that the advocate was in court, that the training was virtual, that no substantial loss or notice of objection/reference had been established, and that litigation must come to an end. The 1st to 4th defendants did not participate. The court framed two issues: extension of time and stay of execution. Applying the Advocates Remuneration Order paragraph 11 and extant case law on extension of time, it found the two-day delay not inordinate and extended time despite misgivings about the excuse. Applying Order 42 rule 6 principles mutatis mutandis, and anchored in Articles 48 and 50(1) of the Constitution, the court allowed the application: leave to file the objection within fourteen days, stay of execution pending the reference, conditional on depositing the taxed costs in a joint interest-earning account within thirty days, failing which the stay lapses. Each party was to bear its own costs.

Key legal issues

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01

Whether the court should extend time to file a reference out of time under paragraph 11 of the Advocates Remuneration Order

Holding

The two-day delay was not inordinate and, despite reservations about the excuse, sufficient cause was shown to extend time.

Reasoning

The court reviewed the extension-of-time principles from the Supreme Court and Court of Appeal: the discretion is unfettered but judicial, considering length of delay, reasons, prejudice and whether the application was brought without undue delay. The delay was only two days beyond the deadline (notice filed 23/02/2024 against a 21/02/2024 deadline). Although the training-based explanation was challenged as the training was virtual, the court held the failure to comply was not inordinate and the sufficient-cause hurdle was satisfied.

p. 5
02

Whether stay of execution of the taxing master's ruling and certificate of costs should issue

Holding

Stay was granted on condition that the applicant deposits the taxed costs in a joint interest-earning account within 30 days.

Reasoning

Applying Order 42 rule 6 principles mutatis mutandis to references from the taxing master, the court considered substantial loss, nugatory proceedings and security for due performance. Accepting counsel's submissions as disclosing material averments, and invoking the constitutional rights of access to justice and fair hearing under Articles 48 and 50(1), the court granted the stay conditional on a deposit of the taxed costs as security.

p. 6

Legal principles established

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  • Extension of time is an equitable discretionary remedy requiring the applicant to explain the delay and satisfy the court of sufficient cause.
  • The discretion under rule 4 of the Advocates Remuneration Order is unfettered but must be exercised judicially, considering the length of and reasons for delay and prejudice to the respondent.
  • The purpose of a stay of execution is to preserve the subject matter so a successful appeal or reference is not rendered nugatory, while balancing the respondent's right to the fruits of judgment.
  • Mistakes of counsel should not ordinarily be visited on the client.

Court orders

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  1. 1.Leave granted to the applicant to file and serve the Notice of Objection to Taxation dated 23/02/2024 within 14 days of the ruling, to be prosecuted on a priority basis
  2. 2.Execution of the ruling of the Taxing Officer delivered on 7/02/2024 and the Party and Party Bill of Costs dated 5/06/2023 stayed pending hearing and determination of the reference
  3. 3.Applicant to deposit the full taxed costs in a joint interest-earning account of counsel for the applicant and the 5th to 7th respondents within 30 days of the ruling
  4. 4.Failure to comply with orders (a) and (c) shall vacate the stay and the 5th to 7th respondents may proceed with execution
  5. 5.Each party shall bear its own costs

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11 (including 11(1), (2), (4))
  • Civil Procedure ActSections 1A, 1B, 3A, 79G
  • Civil Procedure RulesOrder 42 rule 6(1); Order 46 rule (2)(b)
  • Constitution of Kenya, 2010Articles 48 and 50(1)

Cases cited (16)

  • Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others
    [2015] eKLR
  • George Kagima Kariuki & 2 others v George M Gichimu & 2 others
    [2014] eKLR
  • Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Company Limited
    [2015] eKLR
  • Philip Chomwolo & another v. Augustine Kubede
    (1982)-88) KLR 103 at 1040
  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    [2013] eKLR
  • Henry Mukora Mwangi v Charles Gichina Mwangi
    Civil Application No. Nai 26 of 2004
  • Mwangi v Kenya Airways Ltd
    [2003] KLR 486
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 255 of 1997 (unreported)
  • Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another
    [2015] eKLR
  • Reliance Bank Ltd (In liquidation) v Noriake Investments Ltd
  • Rep v Kenya Anti-Corruption Commission & 2 Others
    [2009] KLR 31
  • Carter & Sons Ltd v Deposit Protection Fund Board & 2 others
  • Edward Kamau & another v Hannah Mukui Gichuki & another
    [2015] eKLR
  • RWW v EKW
    [2019]
  • Gianfranco Manenthi & Another vs Africa Merchant Assurance Co. Ltd
    [2019] eKLR
  • Kamuti v Kariuki
    (Miscellaneous Civil Cause E001 of 2023) (2023)
Jurisdiction invoked
Paragraph 11(4) of the Advocates Remuneration Order (power to enlarge time) and sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Articles 48 and 50(1) of the Constitution

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, "Kavithi v Attorney General & 6 others (Environment & Land Case 1368 of 2013) [2024] KEELC 5730 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5730/eng@2024-07-18

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