Ochoki t/a Ochoki and Ochoki Associates Advocates v Kihumo Property Developers

e. Costs of the application be awarded to the Applicant. 2. The Advocate/ Applicants application is premised on the grounds that the Taxing Master taxed the Party and Party Bill of Costs herein at an amount of Kshs Nine Hundred and Fifty Six Thousand Six Hundred and Twenty Nine and Fifty Six Cents on the 25th February 2025. 3. That the advocate led an objection dated 11th March 2025 and sought reasons for the taxation pursuant to Section 11 (2) of the Advocates Renumeration Order. 4. The Advocate / Applicant deposes that two days later he received a call that his mother was critically ill. He travelled home to attend to her. She tragically did not recover. He states that the family responsibility of organizing the send o of his mother fell upon him as the rst born. Due to the pressure of coordinating his mothers burial he did not le a reference within time. He requests the court to grant extension of time within which to le a reference. 5. While this application was still pending, the Advocate/ Applicant led yet another application dated 12th August 2025 in which he seeks leave of the court to submit the Replying Adavit sworn by Francis Mwangi dated 22nd May 2025 and transfer dated 8th April 2015 to the Directorate of Criminal Investigation. His application is brought on the grounds that the Directors of the Respondent Company are fond of forging signatures and the said Francis Mwangi’s signature on the Replying Adavit and the signature on the transfer are dierent hence should be investigated by the court. He urges the court to stay the Ruling of the earlier application to allow the DCI to submit a report on the signatures. 6. The two applications are opposed by the Respondent on the grounds that the Advocate/ Applicant has failed to prosecute the appeal in the Court of Appeal. That the court cannot wait for investigations which can take many years to complete while delaying this matter. He also avers that the reasons by the Advocate/ Applicant for the delay in ling the reference are not valid and should be disregarded by the court. 7. I have considered the applications, the adavits and submissions led herein. The twin issues for determination are whether the court should grant extension of time within which to le a reference and whether the court should stay the Ruling so as to await the DCI report. 8. On the question of extension of time, the court has wide discretion to enlarge time under Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, 2010. Section 95. Enlargement of time Where any period is xed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally xed or granted may have expired. 9. Power to enlarge time (Order 50, rule 6) Where a limited time has been xed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18541/eng@2025-12-04 2

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10. The Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat v IEBC & & Others [2014] eKLR outlined the following guidelines for consideration in an application for enlargement of time: “ (1) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; (2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; (3) Whether the court should exercise discretion to extend, is a consideration to be made on a case to case basis; (4) Whether there is a reasonable reason for the delay, the delay should be explained to the satisfaction of the court; (5) Whether there will be any prejudice suered by the Respondent if the extension is granted; (6) Whether the application has been brought without undue delay;" 11. In the instant case, the Advocate/ Applicant immediately led a Notice of Objection but did not le the reference due to a bereavement which came with many family responsibilities. Death comes with disruption and emotional upheaval which is undeniable. I also note that once he nished the funeral arrangements he immediately led the present application. I have considered the circumstances of the Advocate/ Applicant as described in detail and I nd that this is a t case to exercise discretion in his favour. 12. On the second application this is an miscellaneous application le regarding the specic issue of extension of time. The issue of delay in courts was taken seriously by Kenyans who in enacting the Constitution placed on courts the responsibility to ensure that justice is not delayed. It would be an aront to this constitutional imperative for this court to hold its Ruling in abeyance while awaiting reports by other government agencies who have laws and procedures to handle any criminal activity. I therefore nd that the second application has no merit. 13. On the question of costs given the circumstances that led to the ling of the rst application, each party will bear their own costs for the application. However the Respondent will have the costs for the 2nd application which is dismissed. 14. Consequently, the court makes the following orders; a. Leave to le reference out of time is granted. Reference should be led within 14 days b. Application to arrest ruling dismissed with costs. RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 4TH DAY OF DECEMBER 2025 JUDY OMANGE JUDGE In the presence of:Court Assistant Catherine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18541/eng@2025-12-04 3

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Mr. Saisi for Applicant Mr. Nyaga holding brief for Mr Mongeri for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18541/eng@2025-12-04 4

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