Agunyo Peterlis Ombok v Sukari Industries Limited

2. The application was premised on the grounds that the delay in making payment towards costs was inadvertent and excusable; and that the respondent was not privy to the proceeding in the matter after 31st March 2025 when the matter was scheduled delivery for ruling. The respondent averred that since ruling was not delivered as scheduled because the appointed date was subsequently declared a public holiday, being idd-ul-fitr, vide Gazette Notice No. 3861, it expected to be served with a Notice as ordered by the taxing officer. 3. The respondent further averred that it was never served with any notice and therefore was not present in court on 3rd April, 2025 when the ruling was delivered. It contended that it only got to learn of the delivery of the ruling when it was served with warrants of attachment and a proclamation on 28th May 2025 by Ssebo Intel Company Auctioneers. The respondent therefore prayed that its application be allowed and the orders sought granted. 4. The grounds aforementioned were explicated in the supporting affidavit sworn on 29th May 2025 by the respondent’s Human Resource Manager, Stephen Odera, to which the respondent attached a copy of the certificate of taxation as well as copies of the warrant of attachment, warrant of sale and proclamation of attachment. The respondent averred that the delay in making payment towards the applicant’s costs was inadvertent and excusable. It reiterated the aforementioned grounds asserted that it is in the interest of justice and fairness that the application is allowed. 5. The appellant, Agunyo Peterlis Ombok, opposed the application. He relied on his replying affidavit, sworn on 10th June 2025 in which he averred that, there being no reference before the court from the ruling on taxation, the application for stay of ruling is misconceived. The appellant pointed out that the respondent fully participated in the taxation proceedings and filed submissions to the bill of costs; and therefore no useful purpose would be served by granting the orders sought by the respondent. 6. The appellant further submitted that the subject holiday was not marked in the calendar for this year and therefore could not have been foreseen by the court. He added that the respondent ought to have been vigilant in following up its matter, like everybody else whose cases were scheduled for 31st March 2025. He also averred that, the taxing officer, suo motu, granted stay of execution for 30 days; a window that the respondent ought to have utilized to put its house in order so as to forestall the attachment. Thus, the appellant prayed for the dismissal of the application. 7. The application was canvassed by way of written submissions; directions in that regard having been given on 23rd June 2025. While the appellant complied and filed his written submissions dated 30th June 2025, the respondent did not. The appellant proposed the following issues for determination: 8. (a) Whether the respondent has properly invoked the jurisdiction of the Judge in the instant application. (b) Whether the execution herein for costs was properly commenced? (c) What was the individual party's obligation when the ruling fell on unmarked public holiday in calendar? (d) Who should bear the Auctioneer's costs in the circumstances? The appellant submitted that taxation of costs and the management of the execution process is the mandate and jurisdiction squarely placed with the Deputy Registrar; and therefore the Judge handling the matter can only be approached by way of a reference in the event of an objection to the ruling on taxation. He reiterated his stance that there is no such reference and therefore there is no basis for the court to issue a blanket stay of the ruling and/or execution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6708/eng@2026-04-30 2

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9. The appellant submitted that the respondent appears to be aggrieved simply by the fact that the ruling was delivered in its absence without stating with clarity what useful purpose would be served by issuance of the stay orders sought. The appellant posited that the respondent is to blame for its own indolence and therefore is not entitled to the discretion of the court. He made reference to Mombasa High Court Civil Appeal No. 68 of 2021: Madison Insurance Co. Ltd v Juma Katana Mwamba and Nyandarua High Court Civil Appeal No. 41 of 2023: Moses Mbugua Kimani & 2 others v Stephen Mungai & 2 others, for the submission that equity does not aid the indolent. Accordingly, the appellant urged for the dismissal of the respondent’s application dated 29th May 2025. 10. The brief background to the application is that judgment in this appeal was delivered by Hon. Kiarie, J on 30th November 2021 in favour of the appellant. He was also awarded costs of the appeal. He thereafter filed party and party bill of costs for taxation. The bill was taxed in the presence of the respondent and a ruling on taxation fixed for 31st March 2025; which date was subsequently declared a public holiday. The record of the court shows that the taxing officer gave directions on 1st April 2025 that the ruling would be delivered on 3rd April 2025 on notice to the parties. 11. It is not altogether clear whether the respondent was served with notice for 3rd April 2025. The record shows that the appellant was duly represented and his assertion is that notice was duly served for 3rd April 2025. The key issue for determination is whether in the circumstances sufficient cause has been given by the respondent for stay of the ruling and for setting aside of the warrants of attachment and sale issued herein in execution for costs. 12. Needless to say that taxation is a special procedure intended for the expeditious resolution of disputes arising between advocates and their clients. Hence in Donholm Rahisi Stores (firm) v EA Portland Cement Ltd [2005] eKLR Hon. Waweru, J held: “ Taxation of costs whether those costs be between party and party or between advocate and client is a special jurisdiction reserved to the taxing officer by the Advocates Remuneration Order. The court will not be drawn into the arena of taxation except by way of reference (from a decision on taxation) made under rule 11 of the Advocates Remuneration Order.” 13. As has been pointed out by the appellant, there is no reference pending before the court. As a matter of fact, the respondent appears to be aggrieved only by the fact that the ruling was delivered in its absence. There was therefore no attempt to demonstrate the objective of setting aside the ruling yet the respondent participated in the taxation exercise. It is also noteworthy that, upon delivery of the ruling, the Deputy Registrar granted stay of execution for 30 days. Any party exercising due diligence ought to have sought, within that window, to ascertain the position of the matters listed for 31st March 2025 and taken steps to protect their interests. The respondent has none to blame but itself that it had to wait until commencement of execution proceedings. 14. The respondent failed to demonstrate that the warrants of attachment, warrants of sale and proclamation notice by Ssebo Intel Company Auctioneer were irregularly issued as contended by its. Indeed, in Mohamed v Commissioner of Police & another (Civil Application 134 of 2018) [2022] KECA 954 (KLR) (29 July 2022) (Ruling) the Court of Appeal held: The applicant is certainly entitled to enjoy the fruits of his judgment. It is indeed a common maxim of equity that equity aids the vigilant and not the indolent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6708/eng@2026-04-30 3

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15. Similarly, in Shah v Mbogo & Another [1967] EA 116 it was held: “ …the Courts discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause by justice…” 16. In the premises, I find no merit in the notice of motion dated 29th May 2029. The same is hereby dismissed with costs. I note that the respondent had indicated in its application that it was prepared to pay the costs of the application as well as the Auctioneers costs. It is so ordered. DATED, SIGNED AND DELIVERED THIS 30TH DAY OF APRIL, 2026. ......................................... OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6708/eng@2026-04-30 4

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