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6. That this honourable court be pleased to vacate and set aside in its entirety the ruling and reasoning of the learned taxing master Honourable T.E Marienga (DR) dated and delivered on 19/12/2024 taxing the advocate/clients bill of costs dated 2/09/2024 at KES 1,354,229.64. 7. That the costs of this application be in the cause. 2. The application is premised on the grounds inter alia that the taxing oficer delivered a ruling on 19th December, 2024 taxing the bill of costs at KES 1,354,229.64. The application was supported by the afidavit of Oscar Litoro, the learned counsel on record for the clients/applicants sworn on even date. The learned counsel deposed that the ruling was delivered virtually where the taxing oficer read the last part of the ruling on the taxed amounts. He deposed that no objection could be filed as it is required that the same is filed against the items of the subject bill of costs. He deposed that they requested for a copy of the ruling and closed the firm on 20th December, 2024 for the Christmas vacation and reopened on 7th January, 2025. 3. The learned counsel deposed that by virtue of the said letter, the ruling was availed to them on 8th January, 2025 and upon perusal of the same, the client/applicant instructed them to file a notice of objection. He deposed that as a result, the time for filing an objection and a reference had lapsed. Further, he deposed that the reference is not frivolous, and that the failure to file the same in time was not deliberate but caused by the delay in the court supplying a copy of the ruling. The learned counsel deposed that no prejudice will be sufiered and it is just and fair that the orders are granted. 4. The application was opposed vide the replying afidavit of Collins Ochieng’ Oyomba on behalf of the advocate/respondent sworn on 24th February, 2025. The advocate/respondent deposed that upon delivery of the ruling, the taxing oficer advised the parties that the same would uploaded on the efiling platform. The advocate/respondent deposed that on 20th December, 2024, the ruling was indeed uploaded, and the client/applicant knew the same but chose to ignore. He deposed that the reasons advanced by the client/applicant for failure to file the reference within time is blatant misrepresentation of the facts and not suficient to warrant the court’s discretion. He deposed that the client/applicant has not met the conditions that would warrant stay of execution of the ruling, and that there is no reason why the court should not adopt the certificate of costs as judgment of the court. 5. The advocate/respondent deposed that should the court be inclined to grant the said orders, it should order a deposit of the sum awarded pending the hearing and determination of the reference dated 23rd January, 2025. Alternatively, that the amount be deposited in an interest earning account in the joint names of the advocates. 6. In response thereto, Robert Kinyanjui, the learned counsel for the clients/applicants filed a further afidavit sworn on 5th March, 2025. The learned counsel reiterated the contents of his colleague’s supporting afidavit, and deposed that this court has discretion to enlarge time. Further that the client/ applicants are not dishonest litigants as alleged, and that they have made the application in good faith. He deposed that the clients/applicants should be given a chance to prosecute the reference. 7. The application was canvassed by way of written submissions. The clients/applicants filed their written submissions dated 20th March, 2025 and they raised two issues for determination as follows:i. Whether this court should enlarge time to enable the applicants file a reference against the ruling of the taxing master out of time. ii. Whether the court should stay the execution of the taxation ruling. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5984/eng@2025-09-10 2

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8. On the first issue, the clients/applicants submitted that they have satisfactory reasons for the delay in filing the notice of objection and reference. The invited the court to exercise discretion and relied on the cases of County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, and Republic v Kenyatta University and another exparte Wellington Kihanto Wamburu [2018] eKLR. They further submitted that the extension has been brought in good faith as the Civil Procedure Act is not applicable on the issue of time during the Christmas holiday. Reliance was further placed in the case of George Miyare t/a Miyare & Co. Advocates v Evans Gor Semelang’o [2019] eKLR. 9. On the second issue, the clients/applicants submitted that stay of execution ought to issue until the final determination of the reference, and if stay is not granted, the reference shall be rendered nugatory to an extent of being overtaken by events. To buttress on this issue, the clients/applicants relied on the case of Governors Baloon Safari Limited v Skyship Company Limited & Another [2020] eKLR. 10. The advocate/respondent filed their written submissions dated 2nd April, 2025, and they raised five issues for determination as listed below:i. Whether the applicant has demonstrated grounds to warrant the issuance of an order of stay of execution of the taxing master’s ruling dated 19th December, 2024 pending the hearing and determination of the subject application. ii. Whether the applicant has provided suficient reason for the enlargement of time to lodge a notice of objection and a reference against the taxing master’s ruling dated 19th December, 2024. iii. Whether the supporting afidavit in support of the client’s application is legally admissible. iv. Whether the honourable court should vacate and set aside in its entirety the ruling and reasoning of the taxing master dated 19/12/2024. v. Whether the applicant is entitled to the orders sought in the present application. 11. On the first issue, the advocate/respondent submitted that the clients/applicants have not met the threshold suficient to warrant an order of stay of execution. While relying on the cases of Jaber Mohsen Ali 7 Another v Priscillah Boit & another [2014] eKLR and George Kagima Kariuki & 2 others v George M. Gichimu & 2 others [2014] eKLR, the advocate/respondent submitted that the clients/ applicants’ explanation for the delay is not plausible and it is founded on misleading information. 12. On the second issue, it was submitted that the actions of the clients/applicants portray litigants who are indolent and not keen to prosecute their case. It was submitted that this is based on the fact that the ruling was uploaded on 20th December, 2024 on the e-filing platform. To buttress on this issue, the advocate/respondent relied on the cases of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, M/S Portreitz Maternity v James Karanga Kabia, Civil Appeal No. 63 of 1997, and Mirugi Kariuki & Co. Advocates v Andrew Isoe Ochoki [2022] eKLR. 13. On the third issue, the advocate/respondent submitted that the learned counsel has deponed to numerous statements or allegation of facts which pre-date his engagements with his clients. That for this reason, the facts deponed to cannot be proven of his own knowledge in the first instance. 14. On the fourth and fifth issues, the advocate/respondent submitted that the court ought not to be misled in granting order 6 of the application as it ought to have been sought in the reference. Further, that, the clients/applicants have not demonstrated suficient grounds to warrant the issuance of an order of stay of execution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5984/eng@2025-09-10 3

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15. I have considered the application, the replies thereof and the written submissions filed by both parties. The taxing oficer delivered a ruling on 19th December, 2024 taxing the bill of costs dated 2nd September, 2024 at KShs. 1,354,229.64. Being dissatisfied with the same, the learned counsel for the clients/ applicants contended that they wrote a letter requesting for a copy of the said ruling on the same date and on 20th December, 2024, they proceeded for the Christmas holidays and resumed on 7th January, 2025. According to them, they received the ruling on 8th January, 2025 and sought their clients’ instructions on appealing the said decision. Unfortunately, and as the record on the e-filing portal bears witness as argued by the advocate/respondent, the clients/applicants opted to blame the court for the delay. However, there was no proof that the said ruling was uploaded on 8th January, 2025 to counter the advocate/respondent’s position. On this, I agree that the clients/applicants went into slumber and were indifierent in pursuing the reference. Thus, the issue for determination is whether the clients/ applicants are entitled to an extension of time to file the reference. 16. Rule 11 of the Advocates (Remuneration) Order, states as follows:“ (1) Should any party object to the decision of the taxing oficer, he may within fourteen days after the decision, give notice in writing to the taxing oficer of the items of taxation to which he objects. (2) The taxing oficer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. (3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the court of appeal. (4) The high court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.” 17. From the above provision, it is clear that the clients/ applicants failed to file the notice of objection and the reference within the time set by law. It thus follows that there was need to seek enlargement of time to allow for filing of the reference. However, the clients/ applicants filed the chamber summons dated 23rd January, 2025 and noting the defect in their summons, filed the instant application. In other words, the clients/ applicants are inviting this court to sanitize their unlawful procedure in filing the chamber summons dated 23rd January, 2025 in a bid to find audience before the court. 18. In Gilbert Mwangi Njuguna v Judicial Service Commission & Attorney General [2020] KESC 52 (KLR), the Supreme Court observed as follows:“ The court in that case proceeded to observe and found that: “By filing an appeal out of time before seeking extension of time, and subsequently seeking the court to extend time and recognize such ‘an appeal’, is tantamount to moving the court to remedy an illegality. This, the court cannot do. To file an appeal out of time and seek the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5984/eng@2025-09-10 4

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court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court. It is unfortunate that petition No 10 of 2014 has been accorded a reference number in this court’s registry. This is irregular as the document is unknown in-law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time and not to file an appeal and seek to legalize it. Petition No 10 of 2014 having been filed out of time and without leave (an order of this court extending time), is expunged from the court’s record. On the basis of the aforesaid decision, we hereby find that the filing of the so called “Petition” is a nullity and of no legal consequence. It was filed out of time and without leave (an order extending time) it must be expunged from the court’s record.” 19. While I place reliance on the above authority, and having found that the clients/applicants were outside the time provided to file a reference, they ought to have invoked subparagraph 4 of paragraph 11 of the Advocates (Remuneration) Order above before anything else. Perhaps that explains prayer 4 sought in the instant applicant. In that case, prayer 5 cannot issue as that would be rubber stamping an illegality. Prayer 6 cannot issue for the reason that it can only be dealt with in a reference, and the grounds for setting aside the ruling of the taxation oficer have also not been canvassed. Having said that the decision to enlarge time for filing a reference is discretionary, the reasons advanced by the clients/applicants are not plausible simply because, the e-filing portal bears evidence. However, what is clear is that the clients/ applicants are intent on challenging the decision of the taxing oficer despite their failure to follow the process laid out in law. 20. In the circumstances, this court is inclined to exercise discretion in their favour. However, such discretion comes with costs. The notice of motion dated 24th January, 2025 is hereby allowed as follows: i. The clients/applicants are hereby granted leave to file a notice of objection and reference against the ruling of the taxing master delivered on 19th December, 2024 (Hon. T E. Marienga (DR) on the Advocate/Client Bill of Costs dated 2nd September 2024. ii. The notice of objection and reference to be filed and served within seven days from the date hereof. iii. For clarity and pursuant to paragraphs 18 and 19 above, the chamber summons dated 23rd January, 2025 is hereby struck out. iv. The costs of this application payable by the clients/applicants to the advocate/respondent is assessed at Kshs.75,000/- to be paid within 30 days from the date hereof. Orders accordingly. DATED, SIGNED & DELIVERED VIRTUALLY THIS 10TH DAY OF SEPTEMBER, 2025. HON. MBOGO C.G. JUDGE 10/09/2025. In the presence of: Mr. Benson Agunga - Court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5984/eng@2025-09-10 5

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Ms. Omamo holding brief for Mr. Oyomba for the Advocate/Respondent Mr. Kinyanjui holding brie for Mr. Litoro for the Client/Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5984/eng@2025-09-10 6

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