Zainulabidin Yusufali Dar & 2 Others v Yusuf Mohammed Sikondo & 3 Others

e. This Honourable Court be pleased to enlarge and/or extend the time within which the Plaintiffs/ Applicants may lodge and serve a Reference against the taxation Ruling and/or Certificate of Costs delivered on 26th June 2026 by the Taxing Officer, Hon. Joy Mutimba, in respect of the Defendants' Party & Party Bill of Costs. f. Upon grant of prayer 5 above, the Reference against the said Ruling annexed to the supporting affidavit be deemed to have been duly and properly filed and served. g. There be a stay of execution of the Ruling and/ or Certificate of Costs delivered on 26th June 2026, and of any decree, warrants, or process of execution arising therefrom, pending the hearing and determination of the intended Reference. h. The costs of this application be provided for. 3. The application was premised upon the grounds set out therein and supported by the affidavit sworn by ZAINULABIDIN YUSUFALI DAR, the 1 st Plaintiff/Applicant herein on 6th August 2026. He deposed that judgment in the matter was delivered on 16th February 2026 wherein the Plaintiffs’ suit was dismissed with costs to the Defendants. 4. That the Defendants filed and served a Bill of Costs dated 15 th January 2025(sic) which was taxed at Kshs. 4,123,010/= by the Taxing Officer, Hon. Joy Mutimba vide a ruling delivered on 26th June 2026. He contend that the taxed instruction fees and getting up fees were excessive despite the Taxing Officer finding that the value of the subject matter was not ascertainable from the pleadings or the judgment. Page | 2 RULING- ELCC 94 OF 2021

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5. He deposed that their previous advocates, the firm of M/s. E.K. Owinyi & Company Advocates, did not communicate to them about the proceedings and outcome of the taxation and only became aware of the ruling on or about 1 st August 2026 by which time the fourteen (14) day period for lodging a Reference had already lapsed. He attributed the delay to their former advocates failing to communicate with them and not to any fault, negligence of lack of diligence on their part. He thus urged the court not to visit the mistake of counsel upon them. 6. The plaintiff deposed that they have since instructed the firm of Cootow & Associates Advocates to take over the conduct of the matter and unless the orders sought are granted, the Defendants are likely to execute the taxed sum before the intended Reference is heard and determined which would render it nugatory. He annexed a copy of the draft Reference. 7. That the Defendants will suffer no prejudice which cannot be adequately compensated by costs and noted that the application was made promptly and in good faith upon becoming aware of the proceedings. 8. On the 11th August 2026, this court granted leave to the firm of M/s Cootow & Associate Advocates to come on record for the Plaintiffs in place of the firm of M/s E.K. Owinyi & Company Advocates. Interim orders staying the execution of the Ruling and/or Certificate of Costs delivered on 26th June 2026 and any warrants or process of execution was also issued pending inter parties hearing of the Notice of Motion. The court issued directed on service of the the Notice of Motion. Page | 3 RULING- ELCC 94 OF 2021

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9. In response to the application, the Respondents filed their Replying Affidavit sworn on 14th August 2026 by Yusuf Mohamed Sikondo, one of the administrators of the Estate of Mwanajuma Ali Buwa who had the authority of the other administrator Badru Twalib Akida as well as the administrator of the estate of Twalib Akida Rugunda, to swear the affidavit. 10. He confirmed that he Plaintiffs’ suit was heard and dismissed with costs vide a judgment delivered on 2nd February 2026. After judgment, the Defendants filed their Bill of costs and served the Plaintiffs through their advocates the taxation notice as well as the ruling notice. Copies of the Bill of Costs, Certificate of Costs, and affidavit of service were availed as evidence. 11.He noted that the matter was listed for ruling on 19 th June 2026 wherein the parties were informed that the ruling would be uploaded online. That vide a letter dated 30th June 2026, the Defendants’ advocates informed the Plaintiffs’ advocates that the bill was taxed and ruling delivered on 19 th June 2026. He annexed a copy of the letter as evidence. 12.That on the 1st Jul 2026, the Plaintiffs’ advocate responded to their letter confirmed that he had forwarded their letter to his clients and he requested the Defendants to hold off any adverse action against their clients asserting that one of the partners was admitted in hospital and sought two weeks to respond and finalize. 13.He deposed that where the value of a subject matter cannot be ascertained from the pleadings, the taxing officer had discretion to ascertain the value. That the Plaintiffs were represented by an able firm since 2021 and that cases in Court do not belong to advocates but to litigants and it was the duty of the Plaintiffs to Page | 4 RULING- ELCC 94 OF 2021

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follow up on the taxation, the latter having confirmed being served with the Bill of Costs. 14.He argued that the Court should order a valuation of the suit property to be done by a government valuer in order to determine the value of the suit land which the taxing officer was not able to determine. He surmised that the plaintiffs will suffer prejudice as they need the taxed amount to meet their financial needs and urged the Court to dismiss the application. 15.On 31st August 2026, by consent, counsels opted to disposed of the application by way of written submissions. The matter was reserved for ruling on 30 th September 2026. Submissions by parties 16.The Defendants filed their submissions dated 15th September 2026. The submissions reiterated the contents of the Replying Affidavit. 17.The Defendants contended that stay of execution of a ruling with incorrect delivery date creates an unenforceable, legally ambiguous order which they are unable to deal with in matters compliance. That stay orders must latch onto a specific judgment or ruling not an imagined event. That despite the errors bring brought to the Plaintiffs’ attention vide the Defendants’ Replying Affidavit, the former failed to correct the error. 18.It was further submitted that cases belong to litigants and not advocates. That the Plaintiffs did not demonstrate that they had followed up with their advocates after delivery of the judgment. Page | 5 RULING- ELCC 94 OF 2021

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19.On the issue of taxation of the instruction fees, it was submitted that the taxing master had discretion to ascertain the instruction fees payable since the value of the subject was not ascertainable from the pleadings and judgment. 20.That there was no meaningful reason given as to why the reference was filed out of time. That by virtue of the email by the Plaintiffs’ advocate intimating intention to settle the taxed amount in two weeks, the latter waived any formal procedural defects or raise an estoppel, meaning they had accepted the validity of the costs. 21.They further submitted that the Plaintiffs had not complied with the directions of the Court issued on 31st August 2026 requiring them to file submissions with fourteen (14) days. They submitted that submissions filed after 14 th September 2026 ought to be expunged from the Court record. 22.As at the time of drafting this ruling, the Plaintiffs had not filed their submissions. Issues for Determination 23.I have read and considered the Plaintiffs’ Application dated 6th August 2026, the Replying Affidavit sworn on 14th August 2026, submissions on record and the relevant legal provisions. 24.The Court discerns that the issues for determination are: Page | 6 RULING- ELCC 94 OF 2021

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a) 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. b) Whether stay of execution of the Ruling and/ or Certificate of Costs delivered on 26th June 2026 ought to issue. c) Who should bear the costs the application. Analysis and determination 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. 25.The application is premised on Paragraph 11 of the Advocates Remuneration Order, which provides that a person who objects to the decision of the taxing officer may, within 14 days of receipt of the reasons for the decision, apply to a Judge by chamber summons setting out the grounds of his objection. 26. Paragraph 11(4) of the Remuneration Order provides that; “(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.” Page | 7 RULING- ELCC 94 OF 2021

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27.The Plaintiffs’ application seeks leave to enlarge time within which to file a Reference. The Plaintiffs aver that the ruling on taxation was delivered on 26 th June 2026, whereas the Defendants contend that it was delivered on 19 th June 2026. The Court takes judicial notice that the ruling was, in fact, delivered on 19th June 2026. Although the Plaintiffs’ application refers to a ruling dated 26 th June 2026, the disputed sum of Kshs. 4,123,010/= corresponds with the amount reflected in the ruling delivered on 19 th June 2026. Further, a perusal of the record discloses no ruling on the taxation of costs delivered on 26 th June 2026.The only ruling on record in respect of the taxation is that delivered on 19th June 2026.The Court is therefore satisfied that the reference to 26 th June 2026 was an inadvertent error. Pursuant to the principle that procedural technicalities should not defeat substantive justice, the Court shall proceed on the basis that the application concerns the ruling delivered on 19th June 2026. 28.The ruling having been delivered on 19th June 2026, the prescribed period under Rule 11(1) and (2) of the Advocates Remuneration Order for lodging the Reference expired on 3rd July 2026. The present application was brought on 6th August 2026, approximately thirty-four (34) days out of time. The issue for determination, therefore, is whether the Plaintiffs have demonstrated sufficient basis to warrant enlargement of the prescribed period. 29.The principles that guide the exercise of the court’s discretion whether to enlarge time were authoritatively settled by the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others (2014) eKLR as follows; i. Extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; Page | 8 RULING- ELCC 94 OF 2021

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ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis; iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; v. Whether there will be any prejudice suffered by the respondents if the extension is granted; vi. Whether the application has been brought without undue delay; and, vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 30.The Plaintiffs’ explanation for the delay is that their former advocates did not inform them of the taxation proceedings and the subsequent ruling. They aver that they only became aware of the proceedings on 1 st August 2026, whereupon they filed the present application dated 6th August 2026. The Defendants, on the other hand, contend that the Plaintiffs were well represented during and after the taxation proceedings. They relied on an email from the Plaintiffs’ former advocates acknowledging receipt of the Defendants’ letter demanding payment of the taxed costs. In the said email, the Plaintiffs’ advocates sought two (2) weeks to respond to the letter on the ground that one of the Plaintiffs’ partners was admitted in hospital. 31.The Court in Nyamori v Abuya [2026] KEELC 4943 (KLR) , while considering an application for enlargement of time to file a reference, held thus; Page | 9 RULING- ELCC 94 OF 2021

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“As was observed in Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet (2018) eKLR, cited by the Applicant, the law does not set out any minimum or maximum period of delay; what commends an application for enlargement of time is whether the delay is reasonable and has been plausibly explained. The delay in this matter, in the order of three weeks, cannot by any measure be termed inordinate. The application was brought with reasonable promptitude upon the Applicant’s discovery that the ruling had been delivered.” 32.In the present case, the plaintiffs delayed with 34 days. In exercising discretion whether to enlarge time, the court must balance the need for compliance with prescribed timelines against the interests of substantive justice. Article 159(2) (d) of the Constitution requires the Court to administer justice without undue regard to procedural technicalities, while the overriding objective under the Civil Procedure Act promotes the just, expeditious, proportionate and affordable resolution of disputes. The Court is enjoined to consider the reasons of the delay, its length, the prejudice likely to be occasioned to each party, and the interests of justice. 33.While the Plaintiffs seek an opportunity to challenge the taxation of the Bill of Costs in the sum of Kshs. 4,123,010/=. The Defendants, on the other hand, contend that they would suffer prejudice as they require the taxed costs for their financial needs. The question is therefore whether, having regard to the length and explanation for the delay, the prejudice alleged by the parties, and the nature of the intended Reference, the circumstances justify the exercise of the Court’s discretion in favour of enlargement of time. Page | 10 RULING- ELCC 94 OF 2021

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34.The Court in Nyamori v Abuya, supra, held that: “As to prejudice, the Respondent’s legitimate anxiety over further delay in recovering costs taxed after protracted litigation is one that is capable of amelioration through an expeditious determination of the challenge itself. It does not outweigh the Applicant’s entitlement to be heard on the propriety of the taxation, in keeping with Article 159 (2) (d) of the Constitution which enjoins courts to administer justice without undue regard to procedural technicalities.” 35.The Court is persuaded by the reasoning in the foregoing authority that the Defendants’ interest in recovering the taxed costs for their financial use can be safeguarded by the expeditious determination of the Reference. This interest, when weighed against the prejudice that would arise from dismissing the Plaintiffs’ objection on the taxation solely on account of the 34 days delay, tilts the balance in favour of allowing the Reference to be heard on its merits. In the circumstances, this court finds it just to enlarge time and grant the Plaintiffs leave to file the Reference out of time. 36.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. Stay of execution 37.It is trite that the grant of an order for stay of execution is within the discretion of the Court. In Butt v Rent Restriction Tribunal [1982] KLR, the Court of Appeal set out the principles governing the exercise of that discretion. Guided Page | 11 RULING- ELCC 94 OF 2021

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by those principles, the Court must exercise its discretion in such a way that preserves the subject matter of the intended proceedings and ensures that the Reference, if successful, is not rendered nugatory. In the present case, the Court considers that allowing execution of the ruling and/or certificate of costs dated 19th June 2026 to proceed before the determination of the Reference may undermine the intended proceedings of the Reference. 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. 38.The cost of the instant application shall abide the outcome of the Reference. Dated, Signed and Delivered virtually via Microsoft teams at Kwale this 30th day of September 2026. Hon. E.G Nderitu LJ ELC Kwale In the presence of: Ms. Atsanga h/b for Mr. Wafula for the Plaintiff/ Applicant Mr. Sausi for the Defendant/Respondent Ms. Halima C/A Page | 12 RULING- ELCC 94 OF 2021

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