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)

9, Order 22 Rule 22, Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Articles 40, 48, 50(1) and 258 of the Constitution of Kenya 2010, Rule 17 of the High Court (Organization and Administration) General Rules, 2016, and all other enabling provisions of law, in which the Plaintiffs/Applicants sought the following orders: i. Spent. ii. The Honourable Court be pleased to give effect to the duly executed and filed Consent dated 4th December 2025 between the outgoing advocates, M/s Gichuki Kimere & Company Advocates, and the incoming advocates, M/S Omondi Odegi & Company Advocates, and accordingly allow the incoming advocates to come on record for the Applicants. iii. Consequent to prayer 2 hereinabove being granted, the annexed Notice of Change of Advocates be deemed as duly filed upon payment of the requisite court fees. iv. The Honourable Court be pleased to grant leave to the Applicant to file a reference out of time against the Ruling of the Taxing Master delivered on 9th July 2025. v. Spent. vi. Upon granting leave to file the Reference, the same do operate as stay of execution of the Certificate of Costs and all consequential processes until the hearing and determination of the intended Reference. vii. Costs of the Application and the auctioneer’s charges be provided for. 3. The Application was supported by the grounds therein and a Supporting Affidavit of an even date sworn by Divyesh Indubhai Patel, the Managing Director of the 1st Plaintiff, who deposed that following the Court’s Ruling on 4th December 2025 striking out the previous application on account of NAIVASHA ELCLC No. 89/2024 RULING Page 2 of 24

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non-compliance with the provisions of Order 9 rule 9 of the Civil Procedure Rules, the Applicants had taken immediate collective action. Accordingly, it had now obtained, executed, and filed a written Consent between M/S Gichuki Kimani & Company Advocates and M/S Omondi Odegi & Company Advocates, allowing the incoming advocates to come on record for the Applicant. Accordingly, the present application was properly before the Honourable Court and fully compliant with the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules 2010. 4. That, however, immediately after the previous application had been struck out, the Respondents had moved with haste and Warrants of Attachment and Sale were re-issued by the Court. Thereafter, on 10 th December 2025, the Applicant was served with the re-issued warrants, accompanied by a written indication from the auctioneers that execution would proceed within 24 hours. Consequently, unless an urgent stay was granted, the Respondents may at any moment cart away the Applicant’s machinery, equipment and tools of trade, thereby crippling business operations and causing irreparable harm. 5. He explained that the Taxing Master had delivered the Ruling on 9 th July 2025, so the statutory fourteen (14) days for lodging a Reference under Paragraphs 11(1) and (2) had lapsed. That failure to lodge the Reference in time had not been deliberate but had been solely caused by the inadvertence, omission and failure of the Applicant’s previous advocates to take the necessary steps, despite having been instructed to do so. That, upon instructing M/s Omondi Odegi & Company Advocates and upon their perusal of the court record, the lapse of time had been discovered, hence the present Application. 6. That the intended Reference raises bona fide and weighty issues of law, the Applicant stands to suffer substantial loss because the proclaimed goods comprise essential tools, machinery, stock and equipment central to the Applicant’s core manufacturing operations. Therefore, if the execution proceeds, the intended Reference shall be rendered nugatory. NAIVASHA ELCLC No. 89/2024 RULING Page 3 of 24

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7. That the instant Application has been made without unreasonable delay, given that he needs to first comply with the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010, as directed by the Court. That, in good faith and to satisfy the requirements of Order 42 Rule 6 (2) (b) of the Civil Procedure Rules, the Applicant is ready and willing to provide reasonable security, including (sic) as the Court may deem fit to direct, so no prejudice will be suffered by the Respondents. 8. That the Court had wide discretion under paragraph 11(4) of Sections 1A, 1B and 3A of the Civil Procedure Act, and under its inherent jurisdiction, to prevent injustice and preserve the right to be heard. That unless the orders sought were granted, the Applicant will suffer grave and irreversible prejudice, while the Respondents will suffer none. 9. In response and opposition to the said Application, the 2 nd and 5th Defendants filed their Grounds of Opposition dated 28th January 2026 on the following grounds: i. The instant Application is a bold and reactionary attempt o circumvent a final and conclusive determination of the Honourable Court rendered in the Ruling of 4th December 2025. ii. In the said Ruling, the Court struck out all pleadings filed by the firm of M/s Omondi Odegi & Company Advocates, including their previous attempt to file a Reference out of time, having found that they had no legal standing to move the Honourable Court. iii. The Application further offends the doctrine of Res Judicata as stipulated under Section 7 of the Civil Procedure Act wherein a party is precluded from re-litigating issues of locus standi and procedural validity that have been conclusively adjudicated by this court. iv. Noting the above, the Applicants are attempting a collateral attack on the Ruling of 4 th December 2025 by NAIVASHA ELCLC No. 89/2024 RULING Page 4 of 24

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seeking to regularise that which the Court has already pronounced irregular. v. This Honourable Court has already held that compliance with Order 9 Rule 9 of the Civil Procedure Rules is mandatory and not a mere technicality. vi. The Consent to Change Advocates dated 4 th December 2025 cannot retroactively cure a jurisdictional void that existed when the Applicants’ current counsel first Builders & purported to act in August 2025. vii. As held in Lalji Bhimji Shangani Contractors -vs- City Council of Nairobi [2012] eKLR, a party who flagrantly disregards the orderly conduct of litigation cannot later plead for the Court’s assistance to rectify a deliberate failure. viii. The Applicants seek leave to file a Reference against a Taxation Ruling delivered on 9th July 2025. ix. Pursuant to Paragraph 11(1) of the Advocates (Remuneration) Order, a party dissatisfied with taxation must lodge a notice of objection within 14 days. x. The delay of over five months is inordinate and remains unsatisfactorily explained. The unwarranted plea of inadvertence of previous advocates is a generic excuse that does not meet the high threshold for the exercise of the Court’s discretion to extend time. xi. The Application fails to satisfy the mandatory three-fold test for a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules: a. The Applicants have failed to demonstrate any substantial loss beyond the ordinary legal consequence of satisfying the Taxed Costs. NAIVASHA ELCLC No. 89/2024 RULING Page 5 of 24

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b. The Application is a mere reaction to the Proclamation Notice served on 10th December 2025. c. Despite a vague claim of willingness to furnish security, no proof of ability to secure the taxed costs of Kshs. 9,560,663.00 has been provided. xii. The Respondents are entitled to the fruits of their judgment. The taxed costs were awarded on 10th July 2025, and the Applicants have used procedural manoeuvres to stall execution. xiii. In light of the foregoing, the Application herein is frivolous, incompetent, and amounts to an abuse of the court process. xiv. Accordingly, and in its entirety, the Application dated 11 th December 2025 lacks merit and should be dismissed with costs. 10. The 1st, 3rd and 4th Respondents did not participate in the Application dated 11th December 2025. 11. The Application dated 12th January, 2026 is a Chamber Summons brought by Plaintiffs/Applicants seeking the following orders: i. The Honourable Court be please to set aside and/or vary the Taxation Ruling rendered and/or delivered on 9 th June 2025 in so far as it relates to: a. The Party & Party Bill of Costs dated 12 th February 2025, taxed at Kshs. 7,068,550. And b. The Party & Party Bill of Costs dated 14 th August 2024 taxed at Kshs. 9,560,663. ii. The Honourable Court be pleased to find that the Taxing Officer erred in principle in the assessment of instruction fees and getting-up fees in both Bills of Costs. iii. The instruction fees and getting-up fees awarded in both Bill of Costs be set aside. NAIVASHA ELCLC No. 89/2024 RULING Page 6 of 24

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iv. The said Bills of Costs be remitted for fresh taxation before a different Taxing Officer, with appropriate directions on the correct principles applicable. v. Costs of the Reference be awarded to the Applicants. 12. The Application was supported by the grounds set out therein and by a Supporting Affidavit of even date, sworn by Divyesh Indubhai Patel, the Managing Director of the 1st Plaintiff, who explained that the Bill of Costs the subject of the instant Reference had arisen from ELC Case No. 89 of 2024, which suit had been struck out at a preliminary stage and had not proceeded to hearing or trial. He contended that at no point did the pleadings disclose, plead, or establish any specific monetary or ascertainable subject matter value, nor was any value determined by judgement, consent, or settlement. 13. That, nonetheless, the Respondent had filed two separate Advocate- Client Bills of Costs, which were considered and determined by the Learned Taxing Officer in a ruling delivered on 9 th June 2025, in which the Learned Taxing Officer committed errors of law and principle, thereby necessitating the Honourable Court’s intervention. That the Learned Taxing Officer erred in principle by assuming and imputing a subject matter where none was pleaded, proved or discernible from the pleadings on the record. That it was settled law that, where the value of the subject matter cannot be ascertained from the pleadings, judgement or settlement, the Taxing Officer must resort to the discretionary scale under Schedule 6 and not speculate on the value. 14. That the instruction fees that had been awarded were premised on a wrong principle of law, rendering the taxation unlawful and liable to interference. He argued that the instruction fees as taxed are manifestly excessive, oppressive and disproportionate, having regard to: i. The nature of the dispute; ii. The fact that the suit was struck out; iii. The absence of hearing or trial; and NAIVASHA ELCLC No. 89/2024 RULING Page 7 of 24

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iv. The limited time, labour and skill expended. 15. That the Learned Taxing Officer failed to appreciate that taxation must strike a balance between reasonable remuneration and the avoidance of unjust enrichment. That the Learned Taxing Master had further erred in law by awarding getting-up fees, notwithstanding that: i. The matter never proceeded to trial; ii. No witnesses were prepared or heard; iii. No hearing dates were taken or confirmed. 16. It is trite law that getting-up fees are payable only where a matter has been confirmed for hearing, which was not the case herein. The Ruling on taxation failed to provide sufficient, cogent, and reasoned justification for the quantum awarded, particularly in relation to instruction fees and getting-up fees. The absence of clear reasoning renders it impossible to discern how discretion was exercised, thereby frustrating the Applicant’s right to a meaningful Reference. Further, following the delivery of the taxation ruling, the Applicant moved the Honourable Court and was granted leave to file a Reference out of time, together with an order of stay of execution pending the hearing and determination of the Reference. 17. That indeed, the said order of stay was subsisting, valid and had not lapsed, and hence no further application for stay had been made herein. That, unless the Honourable Court intervenes and sets aside or varies the taxation, the Applicant stands to suffer grave prejudice arising from a taxation founded on wrong principles of law. 18. That the ends of justice require that the taxation be set aside and remitted for fresh taxation before a different Taxing Officer, or alternatively, reassessed by the Honourable Court. That the instant Reference has been brought in good faith, without delay, and solely to vindicate the Applicant’s right to a fair and lawful taxation process. NAIVASHA ELCLC No. 89/2024 RULING Page 8 of 24

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19. In response and opposition to the said Application, the 2 nd and 5th Respondent filed their Grounds of Opposition dated 26th January 2026 opposing the same on the following Grounds: i. The Taxing Master, in the Ruling delivered on 9 th June 2025, correctly exercised the judicial discretion espoused under Paragraph 11 of the Advocates (Remuneration) Order. ii. It is a well-established principle that the Taxing Master has the primary jurisdiction to determine what constitutes a just and reasonable fee based on the complexity, nature, and importance of the matter. iii. The Applicants have failed to demonstrate that the Taxing Officer acted on a wrong principle of law or that the costs awarded are so manifestly excessive as to imply an error of principle. iv. The High Court in First American Bank of Kenya Ltd v. Shah & Others [2002] EA 64 held that a judge cannot interfere with the Taxing Officer’s decision unless it is shown that the officer acted on a wrong principle. Mere disagreement with the final figure is not a ground for interference. v. The Taxing Master correctly identified that the suit involved a challenge to the realization of a security/debt valued at approximately Kshs. 1.9 Billion. Where the value is ascertainable from the pleadings, the Taxing Master is bound to use it as the basis for calculating instruction fees under Schedule VI of the Advocates (Remuneration) Order. vi. The Court of Appeal in Joreth Limited vs. Kigano & Associates [2002] 1 EA 92 emphasized that the value of the subject matter is determined by the pleadings, and where it is not stated, the Taxing Master uses discretion to NAIVASHA ELCLC No. 89/2024 RULING Page 9 of 24

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assess a just fee. In this case, the value was clear and ascertainable. vii. The award of getting-up fees was proper and lawful. The 2nd and 5th Respondents successfully prosecuted a Preliminary Objection that led to the suit being struck out. Significant legal work and preparation went into the defence of the Kshs. 1.9 billion claim before the matter was disposed of. viii. The Supreme Court in Kenya Airports Authority v Otieno Ragot & Co. Advocates [2023] eKLR reaffirmed that Taxing Officers must ensure advocates are fairly remunerated for the responsibility and risk involved in high-value litigation, even where a matter is determined on technicalities or preliminary points. ix. The original suit was found to be an abuse of the court process as it sought to re-litigate issues already pending in other courts. This Reference is a further attempt by the Applicants to delay the inevitable payment of costs to the successful Respondents and to frustrate the execution of the Taxation Ruling. x. The Supreme Court has consistently held that there must be finality in the taxation process to avoid clogging the judicial system with disputes over fees unless a grave injustice is manifest. In this case, the fees awarded are proportionate to the astronomical value of the risk (Kshs. 1.9 billion) that the 2nd and 5th Respondents were put to their defence. xi. In light of the foregoing, the Application herein is frivolous, incompetent, and amounts to an abuse of the court process and should be dismissed with costs. NAIVASHA ELCLC No. 89/2024 RULING Page 10 of 24

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20. The 1st, 3rd and 4th Respondents did not participate in the Applicants’ Application dated 12th January 2026. 21. The two Applications were canvassed by way of written submissions which I shall summarize as hereinunder. Plaintiffs’ Submissions. 22. In Support of its Application dated 12 th January 2026, the Applicants, vide their submissions dated 5th February 2026, listed their issues for resolution as follows: i. Whether the Learned Taxing Officer erred in principle by basing instruction fees on an assumed subject matter value not ascertainable from the pleadings or record. ii. Whether the award of getting-up fees was lawful in a matter disposed of by a Preliminary Objection. iii. Whether the taxation should be set aside and the Bills remitted for fresh taxation before a different Taxing Officer. 23. On the first issue for determination, the Applicants submit that the Learned Taxing Officer committed a fundamental error of principle by inflating the instruction fees based on a speculative value of Kshs. 1.9 billion. Relying on the Court of Appeal decision in Joreth Limited v Kigano & Associates [2002], 1 EA 92, they argue that a Taxing Officer must first check if a dispute's value is explicitly ascertainable from the record. If it is not, they must use the unascertainable value limb under Schedule 6. 24. They emphasized that the underlying Plaint (ELC Case No. 89 of 2024) contained no monetary claim, no value was ever adjudicated by the court, and the case was thrown out at a preliminary stage. By arbitrarily importing a value of Kshs. 1.9 billion, the Taxing Officer skipped the mandatory first legal step. NAIVASHA ELCLC No. 89/2024 RULING Page 11 of 24

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25. Citing the decisions in Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd [1972] EA 162 and Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, they argued that exercising discretion based on a false factual premise makes the decision arbitrary, oppressive, and legally void. 26. The Applicants further cited the decision in Muchiri W’Njuguna & Others v Muchiri W’Njuguna [2006] and the Supreme Court decision in Kenya Airports Authority v Otieno Ragot & Co. Advocates [2023],eKLR to assert that fees must correlate with actual work done. Applying a full-scale commercial value to a case cut short by a Preliminary Objection is an error going to the root of the taxation. 27. On the second issue for determination, they argued that the Taxing Officer took irrelevant factors into account and ignored mandatory legal conditions by awarding getting-up fees. They submit that under the Advocates (Remuneration) Order, getting-up fees are explicitly meant to compensate for actual trial preparation, not for handling threshold or interlocutory applications as was held in Republic v Minister for Agriculture ex parte Muchiri W’Njuguna [2006] eKLR. 28. Referencing the landmark case in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969]1EA 696, they pointed out that a Preliminary Objection dealt strictly with pure points of law under the assumption that the other side's facts are correct, where it required no witness preparation or evidentiary analysis, meaning it never triggers trial readiness. 29. That because the suit was struck out early, no hearing dates were set, and therefore it involved zero trial preparation, awarding getting-up fees compensated the advocates for work they never performed and violated the principle established in Machira & Co. Advocates v Magugu [2002] and Nguruman Limited v Shompole Group Ranch [2014] 2 EA 428 (CA), that costs should only reimburse reasonable expenses, not unjustly enrich a party. NAIVASHA ELCLC No. 89/2024 RULING Page 12 of 24

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30. Lastly, on the third issue on the remittal of the Bills of Costs to a Different Taxing Officer, the Applicants contended that once an error of principle was established, the Court must step in to restore legality. They thus requested that the taxation be set aside and sent back for reassessment by a completely different Taxing Officer. Citing the cases in Nyeri Electricity Undertaking v KPLC [2017] eKLRand Steel Construction Petroleum Engineering (EA) Ltd v Uganda Sugar Factory Ltd [1970] EA 141, they submit that because the errors are foundational rather than minor clerical slips, the entire assessment is unreliable and must be remitted. 31. Further citing the case in Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya [2006]eKLR and Abincha & Co. Advocates v Trident Insurance Co. Ltd [2013]eKLR, they argued that because the original Taxing Officer had already expressed a firm, rigid view on the Kshs. 1.9 billion value, returning the matter to the same officer would create a procedural risk. That assigning a new officer would preserve public confidence, objectivity, and both the appearance and reality of fairness as was held in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR [2014]. 32. In response to the Respondents’ argument regarding finality in litigation, the Applicants cited the decision in Supermarine Handling Services Ltd v KRA [2010] eKLR to conclude that the principle of finality can never be used to rubber-stamp or protect an illegal decision that breaches established legal principles. They sought that their Reference be allowed with costs. 33. The Plaintiffs/Applicants did not file any submission in support of their application dated 11th December 2025. 2nd and 5th Respondents’ Submissions. 34. The 2nd and 5th Respondents’ submissions dated 17th March 2026 are in opposition to both the Notice of Motion dated 11 th December 2025 and NAIVASHA ELCLC No. 89/2024 RULING Page 13 of 24

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the Reference dated 12th January 2026. The 2nd and 5th Respondents first summed up the factual background of the matter and then framed their issues for determination as follows: i. Whether the Application dated 11th December 2025 is a collateral attack on the Ruling of 4 th December 2025 and is barred by the doctrine of Res Judicata. ii. Whether the delay of over five months in seeking leave to file the Reference is inordinate and remains unsatisfactorily explained. iii. Whether the Taxing Officer correctly exercised judicial discretion in the assessment of instruction fees and getting-up fees. iv. Who is to bear the costs of the proceedings? 35. On the first issue for determination, the Respondents submitted that the Application dated 11th December 2025 was a backdoor attempt to bypass a binding court order and is legally barred. They argued that on 4th December 2025, the court delivered a definitive ruling striking out all pleadings filed by M/s Omondi Odegi & Company Advocates, including their initial attempt to file a Reference out of time, because they lacked legal standing (locus standi). That under Section 7 of the Civil Procedure Act, parties are barred from re-litigating issues of procedural validity and standing that a competent court has already conclusively decided. 36. They contended that the Consent to Change Advocates dated 4 th December 2025 could not retroactively validate a historical jurisdictional void dating back to August 2025 when the current counsel first tried to act. Compliance with Order 9 Rule 9 was mandatory, and subsequent form-filling could not rescue fundamentally flawed actions. Their position was that the court should not aid a party using bad-faith tactics to delay the enforcement of a lawful debt. 37. On the second issue for determination, the Respondents argued that the Applicants' request for leave to file the Reference out of time was NAIVASHA ELCLC No. 89/2024 RULING Page 14 of 24

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fatally late and lacked legal foundation. The impugned Taxation Ruling was delivered on 9th June 2025. Under Paragraph 11(1) of the Advocates (Remuneration) Order, an aggrieved party had a strict 14-day window to lodge a written objection. The Applicants waited for over five months before taking proper action. 38. That while the court had the discretion to extend time, such extensions required a plausible, detailed explanation for every day of the delay. The Respondents dismissed the Applicants' blame on the inadvertence of previous advocates as a generic, tired excuse that failed to meet this high legal threshold. Invoking the equitable maxim that ‘’equity aids the vigilant and not those who slumber on their rights,’’ they submitted that the long, unmitigated delay was a jurisdictional defect that a simple prayer for leave could not fix. 39. On the third issue for determination, their submission in defence of the Taxing Officer’s ruling was that he had acted completely within his lawful primary jurisdiction, stating that the Applicant’s claim that the dispute's value was speculative held no water as the the pleadings and record explicitly showed that the lawsuit was a high-stakes challenge to the realization of a security/debt valued at roughly Kshs. 1.9 billion. Under Schedule VI of the Advocates (Remuneration) Order, when a value was clear from the record, the Taxing Master was duty-bound to use it to compute instruction fees. 40. They argued that their getting-up fee was fully earned against a Kshs. 1.9 billion claim, which required extensive legal research, preparation, and work to successfully mount and prosecute the Preliminary Objection that eventually got the suit struck out. 41. Citing the Supreme Court’s holding in the case of Kenya Airports Authority v Otieno, Ragot & Company Advocates (Petition. (Application) E011 of 2023) [2023] KESC 104 (KLR) (8 December 2023) (Ruling), Kenya Airports Authority v Otieno Ragot & Co. Advocates [2023], they reinforced that advocate must be fairly NAIVASHA ELCLC No. 89/2024 RULING Page 15 of 24

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compensated for the immense risk and responsibility tied to high-value litigation, even if won on technicalities. They relied on the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR), to submit that courts generally deferred to the expertise of Taxing Officers on matters of pure quantum unless exceptional errors existed. 42. Lastly, and while relying on the provisions of Section 27 of the Civil Procedure Act, the Respondents submitted that the court’s discretion on costs should be exercised predictably. Because the Applicants' motions were groundless and intended to stall the execution of taxed costs, the costs of these proceedings should be paid entirely by the Applicants. 43. That litigation must come to an end, both applications were frivolous, incompetent, and a gross abuse of the court process designed to keep them from enjoying the fruits of their judgment. They sought the dismissal of both the Applications dated 11th December 2025 and 12th January 2026 with costs. Determination. 44. I have considered the Applicant’s Applications dated 11 th December 2025 and 12th January 2026 respectively, as well as the Respondents’ responses, the parties' written submission and authorities cited, as well as the applicable law. 45. In the Applicants’ application dated the 11 th December 2025, they seek to regularise their legal representation, obtain an extension of time to challenge a taxation ruling, and block pending execution. They also seek that the court gives effect to a Consent dated 4 th December 2025 between the outgoing firm, M/s Gichuki Kimere & Company Advocates, and the incoming firm, M/s Omondi Odegi & Company Advocates. 46. While seeking an extension of time to file a Reference out of time against a Taxation Ruling delivered on 9 th July 2025, they argued that the statutory 14-day window lapsed solely due to the mistake and omission of their previous advocates. Following a 4th December 2025 ruling striking out NAIVASHA ELCLC No. 89/2024 RULING Page 16 of 24

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their previous filings for improper representation, the Respondents reissued the Warrants of Attachment and Sale, under which Auctioneers had now threatened to seize essential manufacturing tools and machinery within 24 hours, which would cripple their business, and offered to provide reasonable security to secure the stay. 47. The 2nd and 5th Respondents opposed the motion, labelling it a bad- faith procedural manoeuvre. They argued that on 4 th December 2025, the court had ruled that M/s Omondi Odegi & Company Advocates lacked legal standing (locus standi) and therefore the current application constituted a prohibited collateral attack seeking to re-litigate a finalised issue. The December 2025 consent could not retroactively fix a jurisdictional void created when the new law firm improperly began acting in August 2025. They also argued that the 5-month delay was inexcusable, and blaming former counsel was a weak, generic excuse. They also noted the Applicants had proven no financial capacity to secure the hefty taxed costs of Kshs. 9,560,663/=. 48. On the second application dated the 12th January 2026, the Applicants sought to challenge the substance of the Taxation Ruling delivered on 9 th June 2025 [sic]), asking the court to set aside two Party & Party Bills of Costs taxed at Kshs. 7,068,550/= and Kshs. 9,560,663/= respectively and thereafter remit them to a different Taxing Officer. 49. They argued that since the underlying land suit, being ELC Case No. 89 of 2024, was thrown out at a preliminary stage without a trial, and contained no ascertainable monetary value, the Taxing Officer erred in principle by arbitrarily inventing/imputing a value of Kshs. 1.9 billion to compute instruction fees, rather than using the discretionary scale for unascertainable values. 50. Their contention was that since the getting-up fee was legally reserved for actual trial preparation, awarding these fees when the case was terminated by a Preliminary Objection amounted to unjust enrichment for NAIVASHA ELCLC No. 89/2024 RULING Page 17 of 24

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work never done. They sought that the court excuse the delay, grant the stay, and set aside the inflated taxation bills with costs 51. The 2nd and 5th Respondents defended the Taxing Master's ruling as legally sound and mathematically proper. They denied that the case value was speculative, arguing that the court record explicitly showed the lawsuit was brought to challenge the realization of a security/debt worth Kshs. 1.9 billion. Therefore, the Taxing Master was legally bound to use that figure as the basis for calculating instruction fees. 52. That successfully defeating an astronomical Kshs. 1.9 billion claim via a Preliminary Objection required massive legal research, risk management, and preparation, making the award of getting-up fees entirely justified and therefore advocates must be fairly compensated for such high-stakes litigation, even if won on technicalities for which courts should not interfere with a Taxing Officer's primary jurisdiction over quantum unless a grave injustice is proven. They sought that both applications be dismissed with costs, arguing that the litigation must come to an end and that they should be allowed to enjoy the fruits of their judgment. 53. It is to be noted that the 1st, 3rd, and 4th Respondents did not participate in either motion. i. Whether the Application is barred by Res Judicata or constitutes a collateral attack, if not, ii. Whether the 5-Month Delay in Seeking Leave to File the Reference is Inordinate and Satisfactorily Explained iii. Whether the Learned Taxing Officer Erred in Principle in Assessing Instruction Fees and Getting-Up Fees iv. Whether the Taxation Should be Set Aside and Remitted to a Different Taxing Officer v. 54. Who Shall Bear the Costs of These Proceedings? On the first issue for determination, Section 7 of the Cavil Procedure Act states as follows: NAIVASHA ELCLC No. 89/2024 RULING Page 18 of 24

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‘’No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.’’ NAIVASHA ELCLC No. 89/2024 RULING Page 19 of 24

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55. A collateral attack, conversely, is an attempt to avoid, evade, or defeat the binding force of a judicial order in a separate, subsequent proceeding, rather than challenging that order directly through an appeal or a formal application for review. 56. For res judicata to apply, the issue must have been finally decided on its merits. The Court's Ruling on 4th December 2025, did not dismiss the Applicant’s intended Reference on the merits, but had struck it out purely because the procedural vehicle carrying it was defective due to noncompliance with the provisions of Order 9 Rule 9. 57. It is trite that striking out a pleading for procedural incompetence does not create a bar of res judicata; it simply means the application was incompetent at that time, and therefore, the matter was not determined as to whether the Applicant was entitled to an extension of time or a stay of execution. It merely states that once the proper legal representative is formally brought on record via a validly executed Consent under Order 9 Rule 9, the procedural block is removed. The jurisdictional void identified by the court on 4th December 2025 applied strictly to the previous filings and did not permanently bar the litigant from coming back through the front door with properly executed documents. 58. Secondly, this application cannot be classified as a collateral attack which seeks to undermine or destabilize a court order through an indirect, side-door mechanism, because the Applicants treated the 4 th December Ruling with absolute deference by accepting the finding of noncompliance, cured the defect by obtaining the necessary consent, and filed a fresh, regularized motion. 59. I therefore find that this application is neither res judicata nor does it constitute a prohibited collateral attack because once the Applicants filed a valid Consent to Change Advocates, they established their locus standi, clearing the path for the Court to hear the fresh application on its merits. 60. On the second issue for determination as to whether the Applicants have established sufficient cause to be granted leave to file their NAIVASHA ELCLC No. 89/2024 RULING Page 20 of 24

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Reference out of time, despite the inordinate five-month delay. The statutory baseline under Paragraph 11(1) of the Advocates (Remuneration) Order is to the effect that a party who wishes to challenge a decision of a Taxing Officer must lodge a written notice of objection with the Taxing Master within fourteen (14) days from the date of the ruling. 61. I note that the Taxing Master delivered the impugned ruling on 9th June 2025. The Application seeking an extension of time was filed on 11 th December 2025 wherein the statutory 14-day window slammed shut on 23rd June 2025. By the time the Applicants filed their Motion on 11 th December 2025, over six (6) months had lapsed. 62. The power of this Court to extend time is an exercise of unfettered judicial discretion under Paragraph 11(4) of the Advocates (Remuneration) Order and Section 1A, 1B, and 3A of the Civil Procedure Act. However, this discretion is not a blank check. It is a judicial attribute that must be guided by clean, predictable rules. As settled by the Court of Appeal in a long line of authorities, the Applicants must pass a clear threshold: they must demonstrate that the delay is not inordinate, and they must provide a plausible, reasonable, and satisfactory explanation for every single day of that delay. 63. The Applicants admit that they are vastly out of time, but they argue that the delay was neither deliberate nor contumacious. Their argument centres on two justifications being that despite having instructed their former Counsel to challenge the taxation immediately after the ruling was delivered, due to counsel's structural oversight, omission, and inadvertence, no Notice of Objection or Reference was lodged. They thus argue that they should not be severely punished or driven from the seat of justice solely because of the negligence or blunders of their legal representatives. Secondly, they contend that the mistake was only uncovered when they instructed their current Counsel and argue that they had spent the intervening months trying to actively prosecute their NAIVASHA ELCLC No. 89/2024 RULING Page 21 of 24

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challenge, which included fighting off the Respondents' motions to strike them out and taking immediate steps to execute a formal Consent to Change Advocates once the Court clarified the representation rules on 4 th December 2025. They maintain that they have acted in good faith and with reasonable dispatch, given the procedural hurdles. 64. Equity Aids the Vigilant, not those who slumber on their rights. It is not in doubt that the Applicants only rushed to court after being slapped with a Proclamation Notice by auctioneers on 10 th December 2025. While it has been established that an advocate's mistake can be a ground for an extension of time, it must be a bona fide mistake properly explained. The Applicant’s claim is that their current counsel discovered the omission in August 2025. If that is true, there was no justification for why a regular, fully compliant Notice of Change of Advocates under Order 9 Rule 9 was not extracted and filed until 4th December 2025. 65. The Applicants chose to file applications using an unprocedural law firm, resulting in their matters being struck out. The months spent defending inherently defective and incompetent filings cannot be subtracted from the delay period; that was time lost due to the Applicants' own choice of litigation strategy. 66. The Applicants state in their Chamber Summons that the Taxing Master delivered the impugned ruling on 9th June 2025. In their Notice of Motion for extension of time, they state the ruling was delivered on 9 th July 2025; this discrepancy reflects a casual approach to the record. When a party asks the court to exercise its equitable discretion to forgive a sixmonth delay, they must approach the court with precise facts, candour, and absolute clarity. They cannot present a vague, generalized narrative that leaves the court guessing. 67. The Respondents have held a valid Certificate of Costs for nearly a year. To disrupt their right to execute this certificate based on a generic plea of advocate's error, without a single letter, affidavit from the former counsel, or concrete proof of diligence, since the case did not belong to NAIVASHA ELCLC No. 89/2024 RULING Page 22 of 24

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the Counsel but to themselves, wherein they took no steps, would be an injustice to the successful party. Discretion cannot be used to sanctify an unmitigated slumber. 68. The six-month delay in seeking leave to file the Reference is inordinate and has not been satisfactorily explained. The generalised blame shifted onto previous counsel, combined with the Applicants' failure to take regularised procedural steps between August and December 2025, demonstrates a lack of the requisite vigilance. Consequently, the prayer for leave to file the Reference out of time must fail. 69. This being the case, and because the application for an extension of time has been denied, the procedural foundation supporting all other prayers must collapse and since there is no valid, subsisting Reference before the Court. A stay of execution cannot exist in a vacuum; it must be anchored to a pending, legally competent appeal or reference. Therefore, the prayer for a stay of execution of the Certificate of Costs is spent and is hereby dismissed. 70. In County Assembly of Migori v Aluochier & 2 others (Petition (Application) E015 of 2023) [2024] KESC 7 (KLR) (Civ) (15 March 2024) (Ruling), the Supreme Court had observed as follows: “In any event, once the petition of appeal and the crossappeal in the instant matter were struck out, all subsequent pleadings lack a basis to stand on. From the foregoing and having dismissed the Motion dated 1st November 2023, it, therefore, follows that the Motion dated 24th November 2023 seeking a stay or abeyance of the latter and leave to file a supplementary record of appeal cannot stand and, is also dismissed.” 71. In essence, therefore, because the Court has denied the Applicants the legal gateway to file the Reference out of time, the Chamber Summons dated 12th January 2026, which contains the substantive parameters of the Reference, challenging the Taxing Master's calculation of instruction NAIVASHA ELCLC No. 89/2024 RULING Page 23 of 24

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and getting-up fees based on Kshs. 1.9 billion value, is procedurally dead, legally incompetent, and can hit no judicial milestone. This Court is completely stripped of jurisdiction to look inside its contents or evaluate its merits, and therefore, the same is herein struck out. 72. The 2nd and 5th Respondents shall have costs of both Applications. Dated and delivered via Microsoft Teams at Naivasha, this 21 st day of May 2026. M.C. OUNDO ENVIRONMENT & LAND COURT– JUDGE NAIVASHA ELCLC No. 89/2024 RULING Page 24 of 24

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