Equip Agencies Limited & another v Gitau & 3 others (Sued as Office Bearers of Gilgil Total Investors Self Help Group) & 4 others (Environment and Land Case 89 of 2024) [2026] KEELC 3124 (KLR)
The bottom line
#The Environment and Land Court refused to forgive a six-month delay in challenging a KSh 16.6 million taxed legal bill, leaving the certificate of costs enforceable.
What this practically means
#Executive summary
#Key legal issues
#Res judicata and collateral attack
The application dated 11th December 2025 was neither res judicata nor a collateral attack; the 4th December 2025 ruling struck out the previous filings on procedural grounds (non-compliance with Order 9 Rule 9), not on the merits, so no bar arose once a valid consent cured the defect.
For res judicata to apply the issue must have been finally decided on its merits. The earlier ruling struck out the filings purely because the procedural vehicle was defective under Order 9 Rule 9, not on whether an extension or stay was merited. The applicants complied with the ruling, obtained a valid consent and filed a fresh, regularised motion, establishing locus standi and clearing the path for the fresh application to be heard on its merits.
Extension of time to file a Reference under Paragraph 11(4) of the Advocates (Remuneration) Order
The prayer for leave to file the Reference out of time failed: the six-month delay was inordinate and unexplained, the plea of advocate's inadvertence was generic, and the applicants showed no vigilance between August and December 2025.
The 14-day window under Paragraph 11(1) closed on 23rd June 2025 and the motion was filed 11th December 2025. Extension of time is discretionary but guided by rules requiring a satisfactory explanation for every day of delay. The applicants rushed to court only after the Proclamation Notice of 10th December 2025, presented contradictory dates for the taxing ruling, and offered no affidavit from former counsel or proof of diligence; time spent defending defective filings could not be subtracted from the delay.
Stay of execution of the Certificate of Costs
Dismissed because a stay cannot exist in a vacuum; with leave to file the Reference refused, there was no pending competent reference to anchor it.
Once the extension of time was denied, the procedural foundation for all other prayers collapsed. There was no valid, subsisting reference before the court, so the stay of execution of the Certificate of Costs and consequential processes could not stand.
The Reference challenging taxation (instruction and getting-up fees)
The Chamber Summons dated 12th January 2026 was struck out as procedurally dead and legally incompetent, the court being stripped of jurisdiction to evaluate its merits.
Because the applicants were denied the legal gateway to file the Reference out of time, the substantive Reference challenging the Taxing Master's calculation of instruction and getting-up fees could not stand, following the Supreme Court's reasoning in County Assembly of Migori v Aluochier that once the foundational pleading is struck out, subsequent pleadings lack a basis to stand on.
Costs
Costs of both applications were awarded to the 2nd and 5th Respondents.
The court exercised its discretion on costs after dismissing the first application and striking out the second, in favour of the respondents who successfully opposed both motions.
Legal principles established
#- Striking out a pleading for procedural incompetence does not create a bar of res judicata; once a proper legal representative is brought on record via a valid Consent under Order 9 Rule 9, the litigant may come back through the front door.
- An application filed after curing an Order 9 Rule 9 defect by a valid consent is not a collateral attack on the earlier striking-out ruling.
- Discretion to extend time is not a blank check; the applicant must show the delay is not inordinate and provide a plausible, reasonable and satisfactory explanation for every single day of the delay.
- Discretion cannot be used to sanctify an unmitigated slumber; a generic plea of advocate's error without proof of diligence cannot defeat a successful party's right to execute a certificate of costs.
Court orders
#- 1.The prayer for leave to file the Reference out of time is denied; the application dated 11th December 2025 fails
- 2.The prayer for a stay of execution of the Certificate of Costs is dismissed
- 3.The Chamber Summons dated 12th January 2026 (the Reference) is struck out
- 4.The 2nd and 5th Respondents shall have costs of both Applications
- Jurisdiction invoked
- Paragraph 11(4) of the Advocates (Remuneration) Order; Sections 1A, 1B and 3A of the Civil Procedure Act; inherent jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Equip Agencies Limited & another v Gitau & 3 others (Sued as Office Bearers of Gilgil Total Investors Self Help Group) & 4 others (Environment and Land Case 89 of 2024) [2026] KEELC 3124 (KLR)", Case Analysis (2026). NAIVASHA ELCLC No. 89/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3124/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.