Ngewa & another v Kilonzo & another

2. The Applicants contend that they led Tawa ELC No. E001 of 2023 through Muema & Associates Advocates. They also led an application for injunction. The application for injunction was heard and was dismissed with costs to the Respondents. The Respondents then proceeded to have the costs for the dismissed application assessed. 3. The costs were assessed exparte and a decree was issued. The Applicants came to know about the assessed costs when auctioneers descended upon them and attached their goods. They contend that their erstwhile advocates did not inform them of the assessed costs. They contend that the assessed costs are exorbitant for an application as the main suit is still pending determination. 4. The Applicants are therefore seeking stay of execution of the decree pending determination of the reference which they intend to urge before this court. They are seeking extension of time to le the reference. 5. The Applicants’ application is opposed by the Respondents through a replying adavit sworn on 18th February, 2025. They contend that the assessment notice was duly served upon the Applicant’s counsel who did not appear in court on 19th September, 2024. The costs were assessed as prayed and they proceeded to execute the decree. 6. The Respondents contend that this court has no jurisdiction to hear the Applicants’ application as the Applicants should have made an application before Tawa court seeking to set aside the exparte assessment. They state that the Tawa case has been heard to conclusion and that they should not be prevented from realizing the fruits of their assessed costs. 7. The Respondents blame the Applicants for not being keen to pursue their case and for ling this application late. 8. In a further adavit sworn on 10th March, 2025, the Applicants contend that they cannot be condemned for mistakes of their counsel and that they could not obtain an adavit from their erstwhile advocate who is uncooperative. 9. The parties were directed to le written submissions. The Applicants led their submissions dated 25th March, 2025. The Respondents led their submissions dated 2nd April, 2025. 10. The Applicants submitted that this court has jurisdiction to extend time for ling a reference to this court. This is provided for under Rule 11(4) of the Advocates Rules. It was further submitted that this court has appellate powers to hear appeals from the subordinate courts. 11. The Applicants relied on the case of County Executive of Kisumu v County Government of Kisumu & 8 Others (2017) eKLR where the Supreme Court stated as follows: “ It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the court. Further, this court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein relied upon. The court delineated the following as “the under-lying principles that a court should consider in exercise of such discretion. 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; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18690/eng@2025-07-31 2

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12. 3. Whether the court should exercise the discretion to extend time, 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 Respondents if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time”. The Applicants also relied on the case of Achola & 2 Others v Otieno (Misc Civil Application E006 of 2024 (2024) KEHC 11483 KLR 30 September, 2024 (Ruling) where Justice Kamau stated as follows: “ Even where a party delays in doing an act, there is always a provision that would give it reprieve to seek justice. Notably, Order 50 Rule 6 of Civil Procedure Rules, 2010 empowers the court to enlarge the time to do a particular act. The said Order 50 Rule 6 of Civil Procedure Rules stipulates as follows: “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”. 13. 14. The Applicants submitted that they will suer substantial loss if stay of execution is not granted. They relied on the case of County Government of Tana River v Miller & Co. Advocates (2012) eKLR where the guiding principles for stay were set out as follows: i. Where special circumstances of the case so requires ii. There is proof of substantial loss that may otherwise result iii. There is substantial question of law to be adjudicated upon by the Appellate court. iv. Where if the stay is not granted, the appeal is successful, would be rendered nugatory. The Respondents submitted that the Applicants had not demonstrated that they will suer substantial loss. They relied on the case of James Wangalwa & Another v Agnes Naliaka Cheseto (2012) eKLR where it was held as follows: “ No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The Applicant must establish other factors which show that the execution will create a state of aairs that will irreparably aect or negate the very essential of the Applicant as the successful party in the appeal... the issue of substantial loss is a cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18690/eng@2025-07-31 3

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15. I have considered the Applicants’ application, the opposition to the same by the Respondents, the submissions led as well as the authorities cited. There are two issues which stand for determination. The rst is whether stay of execution should be granted and the second is whether time to le reference to this court should be extended. 16. On the rst issue, it should be noted that the Applicants are seeking to le a reference to this court arising from the execution process of assessed costs. The Applicants have stated that the assessed costs were excessive given the fact that they relate to a dismissed application where the main suit is pending determination. 17. The impugned assessment was made on 19th September, 2024. This application was led on 10th February, 2025. This is a period of about 5 months. The reason for the delay in bringing the application has been explained. This is because their erstwhile advocate did not inform them that there was an assessment of costs which had been done. Ordinarily, where an application has been dismissed and the main suit is pending, a litigant though represented will not normally expect assessment of costs to be done. This may have made the Applicants not to bother to follow up on their case. I therefore nd that though there was delay of almost 5 months, this delay is excusable. 18. A look at the assessed costs show that prima facie, the instruction fees of Kshs.120,000/- which was given for an application is quite high. If execution was to go on the Applicants will suer substantial loss. The Applicants are willing to provide security for the due performance of the decree. 19. On extension of time, I nd just as in the rst issue that the ling the reference is understandable. The criteria set out in the case of County Executive of Kisumu v County Government of Kisumu & 8 Others (Supra) has been met. 20. Based on the above analysis, I nd that the Applicants’ application is well merited. I allow the same in the following terms: a. The Applicants are granted extension of 14 days to le a reference arising from the taxing ocer’s ruling delivered 19th September, 2024. b. Stay of execution of the decree arising from the ruling of 19th September, 2024 together with consequential orders is hereby granted pending the hearing and determination of the reference which shall be led. c. The Applicants shall deposit security for costs in court in the sum of Kshs.50,000/= within 30 days failing which the stay orders shall automatically lapse. d. The Applicants shall have costs of the application. It is so ordered. ............................................. HON. E. O. OBAGA JUDGE RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY, 2025. In the Presence of: Ms. Mutua for Mr. Muia for Applicant. Ms. Lokol for Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18690/eng@2025-07-31 4

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Court assistant – Steve Musyoki https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18690/eng@2025-07-31 5

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