Kenjap Motor Limited v Matiri Mburu & Chepkemboi Advocates

3. However, without any notice to the applicant or its counsel, the taxing master delivered a ruling on 15th January 2024. That upon perusal of the e-filing system on 8th February 2024, it emerged that the ruling had been delivered without prior notice to the applicant. That the applicant sent a clerk to peruse the court file and discovered that: a. The taxing master delivered the ruling without the benefit of the respondent’s submissions. b. The taxing master never obtained the primary file which was the basis of the taxation c. Emails were sent from a private address of wilson.outa@court.go.ke on two occasions and on both occasions they were marked as spam by the office email. d. The email asking for a copy of the submissions did not relate to the matter at hand. It related to Naivasha High Court civil appeal No. 74 of 2023. e. The two emails were retrieved after it emerged that the two emails were related to this matter. 4. The applicant argues that failure to apply for reasons was thus occasioned by the fact that there was no formal notice or communication of the date of delivery of the ruling, from the court and that email from the private address wilson.outa@court.go.ke which does not pass the muster as a communication from court. 5. Further that the bill of costs as taxed has occasioned gross miscarriage of justice as the taxing master observed that since there were no submissions, the bill of costs was unopposed and that it was taxed as drawn. Consequently, the taxing master contravened the principle that taxation of a bill of costs is not a mathematical exercise but an application of well-settled principles of law. 6. Finally, the applicant argues that the amount awarded by the taxing master is usurious and will occasion great injustice to the applicant. As such, it is only fair that the applicant be allowed to challenge the taxation by the taxing master herein, and seeks that this court extend time within which the applicant can seek for written reasons for the taxation. 7. However, the respondent opposed the application vide a replying affidavit sworn on 7th March 2024, sworn by Njuguna Matiri an advocate of the High Court of Kenya and a partner in the firm of M/S Matiri Mburu & Chepkemboi Advocates. 8. He avers that the application is grossly incompetent, bad in law and otherwise calculated to delay a fair conclusion of this matter as there is no decree in place capable of being stayed, since the certificate of costs is yet to be adopted as the judgment of the court as required under Section 51 (2) of the Advocates Act. Furthermore it lacks merit and does not disclose any sound grounds to warrant granting of the prayers sought. 9. That the bill of costs was fixed for taxation on 27th July, 2023 and on the said date the applicant sought for time to file their written submission and the matter set for mention on 21st September, 2023 to confirm filing of the submissions. That on that date the applicant informed the court that it had filed its submissions and the court reserved ruling for 26th October, 2024. However, the ruling was not delivered on the said date. 10. That subsequent 10th January 2024, the Deputy Registrar sent an email to both parties’ advocates informing the applicant that their submissions were not in the court file and had resulted in a delay in writing the ruling. That the Deputy Registrar requested the applicant advocates to scan and send the filed submissions by the end of the following day. Subsequently on 17th January 2024, the Deputy https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19343/eng@2025-11-04 2

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Registrar sent another email to both parties’ advocates informing them that the ruling had been delivered and that the file was available in the registry for perusal. 11. The respondent avers that the applicant’s advocate received both emails from court as evidenced by the fact that they have been annexed to the supporting affidavit of Githui John dated 9th February 2024. Further after the respondent received the email confirming delivery of the ruling, it extracted the certificate of costs and on 25th January 2024, wrote to the applicant’s advocate requesting the applicant to settle the taxed costs. 12. Furthermore, the present application has been brought to court after a long and undue delay of almost two (2) months since the ruling was delivered and without any plausible explanation. That the application is meant to delay recovery of the costs due to the respondent and appropriately fits in a pattern by the applicant refusal to settle taxed costs. 13. The respondent argues that it will be unjust to the respondent if the application is allowed as it is founded upon clear instances of lethargy; however, if the Honourable court is inclined to allow the application, the court should impose just terms, including requiring the applicant to deposit the taxed costs in court. 14. The application was disposed of vide filing of written submissions. The applicant in submissions dated 16th April 2024 argued that the power of the court to enlarge time is discretionary which should be exercised judicially with an underlying objective to ensure that justice is done. 15. The applicant referred the court to the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR where the Supreme Court of Kenya outlined the following principles to consider when the court is exercising its discretion to extend time: (i) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party. (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 ought to exercise 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, which ought to be explained to the satisfaction of the Court. (v) Whether there would be any prejudice suffered, the respondent if the extension was granted. (vi) Whether, the application had been brought without undue delay and (vii) Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time. 16. The applicant further relied on the case of Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] KECA 199 (KLR) where the Court of Appeal in considering whether to exercise its discretion to extend the time for filing an appeal outlined the factors the court ought to be guided by including but not limited to the period of delay, the degree of prejudice to the respondent and/or interested party, reason for delay and whether the matter raises issues of public importance. 17. The applicant further submitted that the ruling having been delivered on 15th January 2024, the Reference ought to have been filed within fourteen (14) days as stipulated under Rule 11 (2) of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19343/eng@2025-11-04 3

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Advocates Remuneration Order with the cut-off date being 30th January 2024. However, the applicant only became aware of the same on the 8th February 2024 after checking the e-filing portal. 18. That the applicant, who filed the present application within eight (8) days of becoming aware of the ruling and twenty-five (25) days from the date of delivery and not two (2) months as averred by the respondent/advocate in the replying affidavit. That in the circumstances the delay was not inordinate. 19. The applicant further submitted that the failure to issue a notice of delivery of ruling contributed to the delay. Further, the fact that notice of delivery of the ruling was sent from the taxing master’s personal email contributed to the delay as the emails were marked as spam by the domain filters as a security feature, which was a factor outside the applicant counsel’s control. 20. Furthermore, the email from the Deputy Registrar dated 10th January 2024 requesting for their submissions related to High Court Civil Appal 74 of 2023 and not the present suit, as such it is inaccurate for the respondent to suggest an email was sent to the applicant’s advocate asking them to file submissions. 21. That in considering the present application, the court should take into account the fact that the taxing master in his ruling never considered the applicant’s submissions. That on 21st September 2023, the taxing master confirmed the submissions were filed and reserved the matter for ruling on that basis. Therefore, if the submissions were misplaced, the same occurred in the registry, and in the circumstances, the mistake of the registry should not be visited upon the applicant. 22. Moreover, where a matter is disposed of by way of filing written submissions, the submissions are an integral part of a party’s right to be heard, especially in the taxation of a bill of costs where the figures in the bill ought to be considered in the backdrop of well-laid-down principles and the Advocate Remuneration Order. The applicant relied on the cases of Nyangito & Co. Advocates v Doinyo Lessos Creameries Ltd [2014] eKLR and KANU National Elections Board & 2 others v Salah Yakub Farah [2018] eKLR. 23. However, the respondent in response submissions dated 8th April 2024, cited section 2 of the Civil Procedure Act (Cap 21) Laws of Kenya that defines a decree as a formal expression of an adjudication that conclusively determines the rights of parties with regard to all matters in a suit and can be preliminary or final. That the section further states that a decree is preliminary where further proceedings are required before the suit can be completely disposed of. 24. The respondent argued that prayer (b) of the application seeking stay of execution is premature, as there was no decree capable of being stayed. That it is a requirement under section 51 of the Advocates Act for the advocate to make an application to the High Court to have judgment entered as per the certificate of costs. The respondent relied on the case of, Stephens Kithi Ngombo T/A Steve Kithi & Company Advocates vs Bazra A. Tabulo [2012] eKLR where the Court held that only a court can enter judgment as per a certificate of costs on application and not the taxing officer or Deputy Registrar 25. The respondent further relied on the case of Musyoka & Wambua Advocates vs Rustam Hira Advocate (2006) eKLR where the Court stated that section 51 of the Advocates Act gives the court discretion to enter judgment on a certificate of costs that has not been set aside or altered and there is no dispute as to retainer. 26. That in the instant case, it is yet to file an application for entry of judgment and/or adoption of the certificate of costs issued on 22nd January 2024 as an order of the court and therefore there is no decree capable of being stayed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19343/eng@2025-11-04 4

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27. On whether the court should extend time within which the applicant can file a reference, the respondent submitted that extension of time is an exercise of discretion and is not available as of right. The respondent relied on the case of African Airlines International Ltd vs Eastern & Southern African Trade & Development Bank (PTA) [2OO3] KLR 140 at page 143 where the Court cited the case of Mbogo vs Shah (1968) EA 93 where the Court of Appeal outlined circumstances where it will interfere with the exercise of discretion by the trial court, being that ,the trial court misdirected itself, or acted on matters it should not have acted on, or failed to take into consideration matters it should have considered, and in doing so arrived at a wrong conclusion. 28. The respondent further relied on the case of, Kenya Bureau of Standards vs Willis 0. Nyende P/A Nyende & Company Advocates [2018] eKLR where the Court stated that extension of time is not a matter of right but is a discretionary remedy sought by a party which is aggrieved by the decision of a taxing master but has failed to take the required steps within the required time prescribed in law. That for the application to succeed, the applicant must present before the court sufficient relevant evidence explaining the failure to comply with the prescribed timelines to the court's satisfaction. 29. The respondent reiterated the averments in the replying affidavit dated 7th March 2024, that the applicant was indolent in failing to file its submissions before the taxing master despite being accorded more time to do so and in filing the current application. Further the applicant has not given its notice of the items it intends to object to. That in the circumstances the delay is inexplicably unconscionable. The respondent argued that the reason forwarded by the applicant for the delay that the emails were spammed is neither here nor there. 30. That in the circumstances, the applicant has not provided a sufficient or reasonable explanation as to why it did not comply with the timelines prescribed in Paragraph 11 of the Advocates Remuneration Order and file its written submissions. 31. That the applicant’s actions amount to indolence and relied on the doctrine(s) of equity that delay defeats equity and that equity aids the vigilant not the indolent. The case of CNB v MSM [2O15] eKLR was cited where the Court refused to grant orders sought for on the grounds that the applicant therein was indolent and did not provide reasons for her indolence. That the applicant should not be allowed to benefit from its indolence and therefore the application be dismissed with costs. 32. At the conclusion of hearing of this matter and taking into consideration the materials before the court, the only issue for consideration is whether the prayers sought should be granted. 33. In the celebrate case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 others [2014] eKLR the Supreme Court of Kemya set out the principles to be considered in exercising the court’s discretion to extend time already referred to herein. 34. Further, the Court of Appeal in the case of Hussein (Suing as the Administrator of the Estate of Amina Sora Gube) & 2 others v Hirbo [2025] KECA 1413 (KLR) stated that: “ 7. The principles to consider in an application like this one were well set out in the case of Fakir Mohamed vs. Joseph Mugambi & 2 Others in Civil Application No. 33 of 2004 as follows: The exercise of this court’s discretion under Rule 4 has followed a well beaten path since the stricture ‘sufficient reason’ was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19343/eng@2025-11-04 5

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(possibly) the chances of the appeal succeeding if application is granted, the degree of prejudice to the respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance – are all relevant but not exhaustive factors: See Mutiso vs. Mwangi Civil Application No. Nai. 255 of 1997 (ur), Mwangi vs. Kenya Airways Limited [2003] KLR 486, Major Joseph Mwereri Igweta vs. Mulika M’Ethare and Attorney General, Civil Application No.Nai 8/2000 (ur) and Murai vs. Wainana (No. 4) [1982] KLR 38.” 35. To revert back to the matter herein the applicant’s submissions filed in the taxation proceedings annexed to the affidavit in support of the application marked as “GJ1” dated 9th February 2024, being the submissions were received on 7th September 2023. However, by an email dated 10th January 2024, the Honourable Deputy Registrar requested the applicant’s submissions which had been received on 7th September 2023. Apparently as indicated in the ruling of the taxing master, those submissions were not considered in the ruling. It therefore follows that unless there is proof that, the stamp on the submissions indicating that, the subject submissions were received at the High Court registry is proved not to be genuine, then obvious the submission were lying in the registry and the applicant had no control over the same. 36. Consequently, to disallow the applicant’s application will occasion miscarriage of justice as the applicant will be condemned unheard. If indeed the Honourable Deputy Registrar had the benefit of the respondent’s submission, then the taxation of the bill of costs would not be treated as unopposed. That said, the applicant is allowed extension of time of seven (7) days from date of this order within which to seek for reasons and file a reference. As regards prayer (2) of the application I find it premature as argued by the respondent and disallow the same. The costs of this application will abide the outcome of the reference. 37. It is so ordered DATED, DELIVERED AND SIGNED THIS 4TH DAY OF NOVEMBER 2025. GRACE L. NZIOKA JUDGE In the presence of: Ms Karanja for Matiri for the respondent N/A for the applicant Court assistant- Hannah https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19343/eng@2025-11-04 6

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