Salome Naivanui Keen & 7 others v Alice Wanjiru Wanjohi (sued As The Administrator of The Estate of Wanjohi Ndirangu)

Defendant's Bill of Costs was taxed in the sum of Kshs. 7,761,800/= and to file a Reference out of time against the said Taxation. 2. 3. c. That, this Honourable Court do make a decision as to who, between M/s Murimi Mbago & Muchela Advocates And Gordon Ogola, Kipkoech & Company Advocates is truly entitled to the party and party costs in this matter. d. That, this Honourable Court do order that the taxed party and party costs be apportioned among all the Plaintiffs to settle the same in equal portions. e. That, the costs of this Application be provided for. The Application is supported by the Affidavit of Hudson Mwangi Thuku on his own behalf and that of the 4th Plaintiff and is anchored on the following brief grounds: a. That, the Party and Party Bill of Costs was not taxed item after item but in an omnibus way where the Learned Deputy Registrar simply stated "Bill of Costs Taxed as drawn". b. That, this court has jurisdiction and discretion to grant leave to the Plaintiffs to seek reasons from the Hon. Deputy Registrar on the way the party and party Bill of Costs was "Taxed" and to file a Reference out of time. c. That, this Court has the discretion to order that the taxed costs be apportioned amongst all the 8 Plaintiffs to settle the same in equal portions. d. That, there appears to be two law firms claiming the party and party costs hence this Honourable Court should pronounce itself on which law firm is entitled to pursue the payment of the party and party costs, e. That, in the meantime there are Warrants of Arrest against the 2 Plaintiff issued at the instance of the Defendant for his committal to civil jail over the issue of the "Taxed" costs. The Applicant further depones that; a. That, when the Defendant presented her Party and Party Bill of Costs for Taxation, the Learned Deputy Registrar did NOT tax it item after item; instead it was taxed on an omnibus way where the Learned Deputy Registrar sweepingly stated "Bill of Costs Taxed as drawn". b. That, he desires to challenge the manner in which the Bill of Costs was "Taxed" albeit out of time, and since this Honourable Court has jurisdiction to enlarge time within which he can seek the Honourable Deputy Registrar's Reasons and file a Reference out of time, he humbly urges this Honourable Court to exercise that discretion in his favour. c. That, he only learnt of the Taxation of the Party and Party Bill of Costs when he was arrested and escorted to the Hon. Deputy Registrar for committal to civil jail since his former Advocates did not, at any time inform him of this "Taxation". d. That, he is aware that it is now a long time to seek the Court's indulgence in terms of enlargement of time but "Justice" cannot go stale due to lapse of time. e. That, so far the Applicant and Lucy Wanjiru Kigome have so far paid Kshs.950,000/= to M/ s Murimi Mbago & Muchela Advocates after being harassed and hunted down like a petty criminal on account of the Defendant's costs, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19701/eng@2025-08-05 2

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f. That, the other six Plaintiffs should be made to pay their portions of the costs and he urges this Honourable Court to apportion the costs among all the Plaintiffs equally and to now exonerate him and Lucy Wanjiru Kigome from any claims on costs. g. That, in any case, the firm of M/s Murimi Mbago & Muchela Advocates which has viciously targeted him and Lucy Wanjiru Kigome for payment of costs is improperly on record and not entitled to the costs of this case. h. That, even the claim on costs of the Defendant appear to be an issue between two law firms i.e M/S Murimi Mbago & Muchela Advocates and Gordon Ogola, Kipkoech & Company Advocates. 4. This Court had directed the Application be heard and determined by way of filed written submissions. 5. At the time of writing the ruling only the Respondents had complied and filed their written submissions dated 22nd May 2025. Respondents Case 6. The Respondent Alice Wanjiru Wanjohi has opposed the Application in her Replying Affidavit dated 21st May 2025 deponing that; a. That, the Application is fatally defective having not been supported by material facts that would warrant this court to enlarge time within which to the applicants can file a reference against the assessed party to party costs. b. That, the application is an abuse of court process merely meant to frustrate the respondent from enjoying her fruits of the judgement. c. That, the applicants herein have been guilty of laches and indeed this application is being brought after an inordinate long period of time which is clear indication that the same is an abuse of court process. d. That, the judgement against which the applicants was delivered way back on the 11 February 2013 which is a period of more than twelve (12) years from the time when this instant application was lodged. e. That, the applicants have indeed exhibited a history of endeavouring to unnecessarily protract this matter despite the court's determination on the same. The Applicants thus mischievously wants to have this litigation remain alive for the longest period and to do so the applicants intentionally delays in taking any necessary actions including challenging the taxation if indeed the said challenge was justified. f. That, this honourable court should appreciate that the substantive dispute herein commenced several years ago and a suit was filed, being Nakuru HCCC No. 405 of 1988 Naivanui Wanjiru Vs Ngong Ole Kararu, Anna Memsi & Francis Wanjohi Ndirangu in which dispute the issue of ownership of the disputed land was decided with finality and the suit land was held to belong to Francis Wanjohi Ndirangu (now deceased) and for whose estate I am the adminstratix. g. That, the there was no appeal against that decision but the family members of the plaintiff in that earlier suit, who are the applicants herein, later and after a long period of time filed this instant case being NAKURU HCCC No. 56 OF 2008 (0.5) in which suit they sought ownership by way of adverse possession. The High court did dismiss the applicant's suit noting https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19701/eng@2025-08-05 3

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that the applicants were not adverse possessors since their entry to the land was by virtue of their parent's claim of ownership which claim was nullified by court on NAKURU HCCC No. 405 of 2008. h. That, the applicants have thus been using the court process to delay the determination of the dispute. i. That, to further show the applicants guilt, when the judgment in the High Court was delivered on the 15th February 2013, the applicants requested for copies of typed proceedings on 19th February 2013 but never prosecuted any appeal. 7. The Respondent has refined two issues for consideration and submits that as to whether the applicant should be granted leave to file a reference out of time? 8. That, the power to enlarge time is discretionary. It is not a right guaranteed to the applicants. Courts have already decided on the considerations that should be made before such discretionary power can be exercised in favour of an applicant. The principles to be considered in exercising the discretion whether or not to enlarge time was set out in the Supreme Court case of County Executives of Kisumu County vs County Government of Kisumu and 8 others [2017] eKLR where the supreme court held:“ It is trite law that in an application for extension of time the whole period of delay should be declared and explained satisfactory to th court (emphasis mine). This court has settled the principles that are to guide it in the exercise of discretion to extend time. The underlying principles that a court should consider in exercise of such discretion are: a. 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 courts. b. A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court. c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis. d. Whether there is a reasonable reason for the delay, the delay should be explained to the satisfaction of the court. e. Whether there will be any prejudice suffered by the respondence if the extension is granted. f. Whether the application has been brought without undue delay. g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 9. That, in applying the above principles to the application at hand, one must conclude that the applicants have not met the threshold necessary to invoke the discretion of this honourable court. 10. Firstly, the whole period of delay has not been explained satisfactorily. The party to party costs were taxed on 25th November 2014 by the taxing master. This was after the bill of costs had been mentioned a record eight times. It is now 11 years since the taxing master taxed the party to party costs, the applicants haven't stated why it took them this long to file this application. The claim that they were not aware of the same is not valid since the applicants were fully represented during the taxation proceedings hence https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19701/eng@2025-08-05 4

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they knew there a was a Party to Party Bill that was due for taxation. The burden to prove sufficiently, the basis for enlarging time has not been discharged. 11. As to whether the applicants are deserving of this equitable remedy the court must also consider the conducts of the applicants throughout this case even post that judgment, the applicants have been filing numerous applications that have all been dismissed. The applicants had even filed a similar application dated 10th March 2025 and instead of prosecuting it they withdrew the same by the notice dated 31st March 2025 and then proceeded to file this instant application. Prior to this, the applicants had also filed another application Dated a 18th November 2024 again seeking similar orders, this application was never prosecuted. The applicants. had also filed three previous applications dated 27th July 2023, 2nd August 2023 and 6th November 2023 all applications seeking in one way or another two stall the execution and or conclusion of this matter. All these applications were dismissed and this court rightfully noted that the applicants conduct is being abusive of the judicial process. 12. The Respondent therefore submits that even this instant application is part of this scheme by the applicants to protract this litigation into eons. The court should not be dragged into such tactics by allowing the applicants more time to file a reference against a taxation that was even never challenged in the first place. 13. The High Court has had occasion to consider the conduct of an applicant in the case of Robinson Onyango Robinson Malombo t/a O.M. Robinson and Company Advocates vs County Government of Mombasa [2016] eKLR in which case, the judge had this to say. “ I have highlighted all the foregoing facts to interrogate whether the conduct of the applicants is that which deserves the judicial discretion in enlargement of time. Having done so, I have come to the conclusion that the delay is not only unexplained but also is inordinate. The conduct of the applicant is the kind that is outrightly indolent, oblivious and indeterrent to the obligation that it has a duty to assist the court meet its objective to dispense justice timeously, proportionately and without delay. In this matter the court takes the view that to enlarge time and set aside the proceedings undertaken in the absence of the applicants as a result of its failure to honour service will be to aid a party who has by evasion or just indeterrence sought to derail delay the course of justice. That is not the purpose for which judicial discretion is meant to serve." 14. On the 2nd issue as to whether this court should make a decision as to which firm of advocates between M/s Murimi, Mbago and Muchela Advocates and M/s Gordon Ogola and Kipkoech Advocates is entitled to the party to party costs. 15. That, this prayer is indeed premised on misapprehension of the facts and the law. The bill of costs that was taxed and for which the respondent is executing for is a Party to Party Costs and not Advocate Client Costs. As such, it is the firm on record that is only giving the litigant representation in pursuing for her party to party costs. The costs are an entitlement of the party that is why they are called party to party costs. As things currently are, the respondent has instructed the firm of Murimi, Mbago & Muchela Advocates to pursue execution proceedings hence it is this firm that is currently on record. The firm of Gordon Ogolla & Kipkoech did give the respondent herein representation at some point during the hearing of the case and the said firm was paid its fees by the respondent. 16. That process has nothing to do with the ongoing execution proceedings. If indeed the firm had a claim against the respondent, they would have filed and pursued an Advocate Client Bill of Costs. Of course that is not what was before the Honourable Taxing Master and as such this court cannot be called upon https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19701/eng@2025-08-05 5

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to wade into the waters of which firm of advocates will be paid by which clients and that this prayer is a non-starter and ought to be dismissed. 17. On the 3rd issue of apportionment of the duty to pay the costs amongst the plaintiffs the Respondent contends that, this prayer is proof of the applicant’s scheme to evade satisfaction of the judgment. The first question this honorable court should ask itself is if indeed these applicants are willing to pay the cost in equal portion shared amongst them, what stopped them from doing so in the first place? Did they need to bring an application before court to have orders requiring them to pay? No they did not. Your Lordship, the case was filed by all the plaintiffs and when judgment was delivered, their suit was dismissed with costs. The defendant now respondent could thus rightfully pursue costs from any or all of the plaintiffs. One or two of the plaintiffs cannot distance themselves from the obligation to pay costs. In fact it is the decree holder who has the privilege to elect against whom she shall proceed with execution. 18. That, if the application as prayed is to be allowed then a dangerous precedent will have been created where maybe co-defendants lose a case then they come back to courtstating that is the other defendant who should satisfy the judgement. If liability was to be apportioned in any way, then that would have been brought out during the case and the court that heard the case would have stated what is the extent of liability for each plaintiff. In this case there was no such pronouncement. To start making such apportionment at this stage or through this application, would be tantamount to reviewing the judgment. The application before you was not for review of judgment and as such we submit the prayers sought cannot be granted. 19. Finally, it should not be lost to this court that this application has been filed hot in the heels of ongoing execution proceedings. The respondent had taken warrants of arrests against the applicants and this matter had already been taken to the Deputy Registrar to have the applicants committed to civil jail. They rushed to file this application just to delay and or defeat that process. The respondent has been in these courts in search for justice which should not be an elusive simply because of the mischief of such applicants. We do pray that you dismiss this application with costs and further give orders that the applicants should not be allowed to file any further applications in this file. Analysis and determination 20. This was an Application for extension of time and the onus was upon the Applicant to satisfactorily justify the same as the basis of the court exercising its discretion. 21. The court concurs with the submission by the respondent that,the taxation was undertaken on the 25th November 2014 after the bill of costs had been mentioned a record eight times. It is now 11 years since the taxing master taxed the party to party costs, the applicants haven't stated why it took them this long to file this application. The claim that they were not aware of the same is not valid since the applicants were fully represented during the taxation proceedings hence they knew there was a Party to Party Bill that was due for taxation. The burden to prove sufficiently, the basis for enlarging time has not been discharged. 22. As for the other issue of Apportionment of the Costs to all the judgment holders, this is not an issue requiring judicial pronouncement by the judge and the execution court and process can adequately address the issue without need for any judicial pronouncement. 23. This court has not been persuaded to enlarge time to challenge a taxation undertaken over eleven years ago. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19701/eng@2025-08-05 6

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24. I find no merit in the Application dated 31st May 2025 and accordingly dismiss the same with costs to the Respondent It is so ordered. DATED, SIGNED AND DELIVERED AT NAKURU ON THIS 5TH DAY OF AUGUST 2025 MOHOCHI S.M. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19701/eng@2025-08-05 7

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