Irene Muthoni Njirati v Diamond Trust Bank Kenya Limited

3. According to Kilwanda, following this Honorable Court's judgment delivered on 27 October 2023 allowing the respondents appeal with costs, the appellant filed a Party and Party Bill of Costs dated 12 March 2024 seeking costs of Kshs. 621,181.40. The Bill of costs was scheduled for mention on 05 March 2025 when the Bank's Advocates on record attended Court, confirmed service of the Bill of Costs and sought time to review and dispute the same. The Bill of Costs was then scheduled for taxation on 19 March 2025. 4. Unfortunately, the Bank's advocates on record inadvertently failed to diarise the mention date of 19 March 2025. As a result, neither the Bank nor its advocates on record attended court on 19 March 2025. 5. The Bill was eventually taxed and a ruling on the taxation delivered on 27 March 2025. The handwritten ruling was uploaded on the Case Tracking System portal on 4 April 2025. 6. According to the ruling, the Bill was taxed at Kshs. 509,464/=. A stay of execution of the certificate of taxation was granted but only for 30 days from the date of the delivery of the ruling. 7. It is sworn on behalf of the applicant that due to the failure to diarise the mention date of 19 March 2025, the Bank and its advocates were not aware of any further proceedings in the matter until 25 April 2025, when the Appellant's advocate on record served the Bank's advocates on record with a Certificate of Taxation dated 24 April 2025. 8. The Bank is aggrieved by the taxing officer’s decision dated 27 March 2025 and the certificate of taxation dated 24 April 2025 yet it is out of time to file a reference to this Honourable Court, hence the instant application. 9. Apart from the application of 15 May 2025, the applicant also filed another application dated 30 May 2025 basically seeking stay of execution of the certificate of taxation pending the hearing and determination of the application dated 15 May 2015. 10. The appellant/respondent opposed the two applications, and to that end, Mr. Manase Ananda Calleb, the learned counsel for the respondent filed a replying affidavit. 11. According to Mr. Ananda, the applicant has conceded that its advocates were in Court when the taxing officer gave directions on 5 March 2025 that the Bill of Costs dated 12 March 2024 would be taxed on 19 March 2025. The allegations that the applicant’s advocates failed to diarise the taxation date is untrue as there is no such proof provided by the applicant’s advocates. 12. In any event, the taxing officer proceeded to tax the Bill and, in her discretion, taxed the party and party Bill of Costs by reducing it from the initial Kshs 621,181.40 to Kshs. 509,464. 13. The applicant, it is contended, ought not to blame the taxing officer or the respondent since its advocates did not attend court on the date scheduled for the taxation of the Bill and also did not file any response to the said Bill despite having admitted that it was duly served. 14. I have considered the applicant’s application and the response thereto together with the submissions filed by counsel in support of and in opposition to the application. 15. Of particular relevance to this application is the reason given for the delay in seeking to file a reference against the impugned taxation and, whether, owing to the reason for the delay, it is a reference that ought to have been filed in the first place. 16. The record shows that the Bill of Costs came up for taxation on 15 March 2025. On that date, counsel for the applicant sought for an adjournment, an application that the respondent’s counsel did https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18858/eng@2025-07-30 2

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not object to. The Bill was eventually set for taxation on 19 March 2025. On the material date, the applicant’s counsel did not attend court and so a ruling date for the taxation of the bill was set. 17. According to the applicant, its counsel did not attend the taxation because he did not diarise the matter. If that be the case, the first port of call ought to have been to seek to set aside or vacate the proceedings of 19 March 2025 so that the applicant could participate in the taxation proceedings. Moreover, the applicant had on 15 March 2025 “sought time to review and dispute the bill of costs”. 18. A proper course should have been for the applicant to seek the taxing officer vacate or set aside the proceedings or orders made on 19 March 2025 and, if the applicant succeeded in that regard, a new date would have been set for the taxation of the Bill of Costs, inter partes. 19. In any case, even assuming the application is properly before me, the explanation that counsel for the applicant did not diarise the matter is not supported by any proof. Furthermore, failure to diarise a matter does not, of itself, entitle a party to the orders sought by the applicant. 20. For the foregoing reasons, I find and hold the applicant’s application to be misconceived, an abuse of the process of this Honourable Court and, in any event, without merit. Both the applications respectively dated 15 May 2025 and 30 May 2025 are hereby dismissed. It is so ordered. SIGNED, DATED AND DELIVERED ON 30 JULY 2025 NGAAH JAIRUS JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18858/eng@2025-07-30 3

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