Zainulabidin Yusufali Dar & 2 Others v Yusuf Mohammed Sikondo & 3 Others
The bottom line
#A Kwale court let late applicants challenge a Kshs 4.1 million costs ruling, excusing their 34-day delay and freezing collection until the challenge is heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiffs have made out a case for enlargement of time to file the reference out of the decision of the Taxing Officer delivered on the 26th June 2026
- 2.Whether stay of execution of the Ruling and/or Certificate of Costs delivered on 26th June 2026 ought to issue
- 3.Who should bear the costs of the application
Key legal issues
#Enlargement of time to file a reference against a taxation ruling
The 34-day delay was excused; the applicants' promptitude upon learning of the ruling and the respondents' ability to be compensated through expeditious determination tilted the balance in favour of extension
The court applied the Salat principles: extension is discretionary and equitable, requiring a reasonable explanation for delay and consideration of prejudice. The delay was attributed to former advocates' failure to communicate; the application was filed within days of discovery. The respondents' interest in recovering taxed costs could be safeguarded by an expeditious hearing of the Reference, so the balance favoured allowing the Reference to be heard on its merits.
Effect of an incorrect date of the taxation ruling in the application
The reference to a ruling of 26th June 2026 was an inadvertent error; the court took judicial notice that the only taxation ruling on record was delivered on 19th June 2026 and proceeded on that basis
The court took judicial notice that the ruling was in fact delivered on 19th June 2026; the taxed sum of Kshs. 4,123,010 corresponded with that ruling and no ruling of 26th June existed on the record. Invoking Article 159(2)(d) and the overriding objective, the court treated the wrong date as an inadvertent error that should not defeat the application.
Stay of execution of the certificate of costs pending the reference
Stay granted because allowing execution before determination of the Reference may undermine the intended proceedings
Applying the principles in Butt v Rent Restriction Tribunal, the court held that its discretion must preserve the subject matter of the intended proceedings and ensure the Reference, if successful, is not rendered nugatory. Execution of the certificate of costs before determination of the Reference could undermine it, so the interests of justice warranted a stay pending the Reference.
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party at the discretion of the Court, guided by the Salat principles
- Procedural technicalities should not defeat substantive justice; an inadvertent error in the date of a ruling does not defeat an application
- A respondent's legitimate anxiety over delay in recovering taxed costs does not outweigh an applicant's entitlement to be heard on the propriety of the taxation
Court orders
#- 1.Time enlarged and leave granted to the Plaintiffs to file the Reference out of time against the taxation ruling of 19th June 2026
- 2.The Reference annexed to the Plaintiffs' Supporting Affidavit deemed duly filed and served upon the Defendants
- 3.Stay of execution of the ruling and/or Certificate of Costs dated 19th June 2026 and any decree, warrants or process of execution arising therefrom, pending hearing and determination of the Reference
- 4.Costs of the application to abide the outcome of the Reference
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Paragraph 11(4) of the Advocates (Remuneration) Order; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Article 159(2)(d) of the Constitution of Kenya, 2010
Relief refused
#Costs of the application to the Plaintiffs
Costs were made to abide the outcome of the Reference rather than awarded to the applicants
Costs
The cost of the instant application shall abide the outcome of the Reference.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, this court finds it just to enlarge time and grant the Plaintiffs leave to file the Reference out of time.
For purposes of expeditious disposal, the Reference annexed to the Plaintiffs’ Supporting Affidavit shall be deemed to have been duly filed and served upon the Defendants.
The Court is therefore satisfied that the interests of justice warrant the grant of a stay of execution pending the hearing and determination of the Reference.
The cost of the instant application shall abide the outcome of the Reference.
Issues in the judgment
#Conflicting dates for the dismissal judgment: 16th February 2026 versus 2nd February 2026
Conflicting dates for the taxation ruling: 26th June 2026 in the application versus 19th June 2026 per the court
Bill of Costs dated '15th January 2025(sic)' appears inconsistent with the chronology
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zainulabidin Yusufali Dar & 2 Others v Yusuf Mohammed Sikondo & 3 Others", Case Analysis (2026). ELC No. 94 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6066/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.