Ngulli & Co. Advocates v Monarch Insurance Co. Limited

advocates to promptly take up the matter; that the statutory timelines for filing a Reference have since lapsed, hence the instant Summons and that the delay in filing the Summons is not inordinate. 4. It is the deponent’s averment that the draft Reference annexed to the Summons raises arguable grounds for setting aside the taxation ruling and that unless the prayers sought therein are granted, the Respondent stands to suffer the risk of settling an excessive sum on the Bill of Costs. Replying Affidavit 5. The Summons is opposed by the Applicant through a Replying Affidavit sworn by its proprietor, Fidellis Mueke Ngulli, on 17.11.2025 in which it is deposed that the Summons is incompetent and offends the relevant provisions under the Advocates (Remuneration) Order for the reasons that the Respondent was duly served with the relevant pleadings and mention notices relating to the taxation proceedings, and that no material has been tendered to support the assertions made on the reason for delay in timeously filing a Reference. 6. The deponent has further stated that if the prayers sought are granted, the Applicant will be prejudiced by way of a denial to the fruits of its judgment and that the draft Reference contains mere denials and does not raise any triable or arguable issues for determination. Submissions 7. The Summons was argued by way of written submissions. In support of the Summons, the Respondent has relied on Rule 11(4) of the Advocates (Remuneration) Order which bestows discretionary power upon the courts to make an order for the enlargement of time to enable a party file a Reference out of time. The Respondent has maintained that sufficient reasons have been given to explain the delay; that the delay in question is not so unreasonable as to prejudice the Applicant and that the delay is neither intentional nor malicious. 8. The Respondent has maintained that if the prayers sought in the Summons are declined, it will be denied the opportunity of challenging the taxation ruling and will thus be subjected to grave injustice and that, in contrast, any prejudice which will befall the Applicant can adequately be compensated by an award of costs. 9. On those grounds, the Respondent has urged that the Summons be allowed and that an order be made that costs follow the event, with reliance being placed on the case of Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review Application No. 6 of 2014 in which the court held that an award of costs lies with the discretion of the court. 10. On its part, the Applicant has anchored its submissions on the decision in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) where the Supreme Court laid out the principles applicable in determining an application seeking an extension of time. The Respondent has submitted that while the court has discretionary power to enlarge the timelines for lodging a Reference pursuant to Rule 11(4) of the Advocates (Remuneration) Order, such discretion ought to be considered in line with the principles set out in the Salat case, cited above. 11. The Applicant gas argued that the delay of over six (6) months on the part of the Respondent in moving the court is not only unreasonable, but is also inexplicable and that no evidence has been tendered to support the reasons for delay set out in the Summons. 12. To buttress the argument above, the Applicant has urged this court to be guided by the case of Mwangi & 2 others (Suing on their own and on behalf of Twendane Company Limited) v Kanyamwi Trading https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7409/eng@2026-04-14 2

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Company Limited [2015] KECA 967 (KLR) where the Court of Appeal reasoned that sufficient reasons ought to be given in explaining delay, which reasoning was reaffirmed in the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR). 13. The Applicant has restated the averments made earlier in the replying affidavit, that all relevant pleadings and notices were served upon the Respondent notifying it of the existence of the taxation proceedings. The Applicant has maintained that the instant Summons has been brought in bad faith and that if the same is allowed, it is certain to suffer prejudice in the manner argued in this Summons. Determination 14. I have considered the Summons and the grounds supporting the same. I have considered the Replying Affidavit in opposition to the Summons and the submissions of the parties. The Respondent seeks enlargement of time for filing the Reference and asks the court to deem the filed Reference as properly so filed and served. 15. The discretionary power of the courts in enlarging the time required for filing a Reference is provided under Paragraph 11(4) of the Advocates Remuneration Order. Paragraph 11 allows a party who is objecting to the decision of the taxing officer to give notice in writing to the taxing officer within 14 days after the decision of the items to which the objection is raised. 16. Paragraph 11(4) of the Advocates Remuneration Order provides that: (4) 17. The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far 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. It is settled that whether to grant or not to grant an extension of time lies with the discretion of the court, as rightly held by the Court of Appeal in the case of Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR) thus: “ ... in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No Nai 255 of 1997) (unreported), the Court expressed itself thus: “It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted.” 18. I am alive to the fact that this is not an appeal but the above principles apply equally in matters where extension of time. Besides, it is settled that a Reference is by and large an appeal, against a decision rendered by a taxing officer. Consequently, the general principles governing the enlargement or extension of time for filing an appeal would apply here. 19. The Supreme Court in the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) was categorical, inter alia, that extension of time is not a right of any party but an equitable remedy that is only available to a deserving party at the discretion of the court; that a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; that the court in exercising the discretion to extend time is a consideration to be made a case- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7409/eng@2026-04-14 3

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to-case basis; that the delay should be explained to the satisfaction of the court; that the court should consider whether there will be any prejudice suffered by the Respondent if the extension is granted and whether the application has been brought without undue delay. 20. On the question of delay, the legal principle is that both the duration and explanation of delay are key considerations in determining whether to extend time. This was reaffirmed by the Court of Appeal in Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 Others [2019] eKLR when it reasoned that: “ The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained, hence a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There have to be valid and clear reasons, upon which discretion can be favourably exercisable……” 21. I have noted that the instant Summons has been brought sometime on or about five (5) months from the date of delivery of the taxation ruling on 11.06.2025. In my view, the delay while prolonged, is not inordinate. 22. I have likewise considered the reasons given by the Respondent to explain the said delay, alongside the opposing averments by the Applicant. from the record, it is clear that upon the Applicant filing the Advocate-Client Bill of Costs dated 25.04.2025, directions were given by the court on the manner of disposal thereof; that service of copies of the Bill of Costs, a taxation notice and the court’s directions, was effected upon the Respondent on 9.05.2025 as evidenced by the affidavit of service sworn by advocate Fidellis Mueke Ngulli on 15.05.2025 and marked as Annexure “FMN 1” to his replying affidavit. The issue of service has not been disputed by the Respondent. The explanation given by the Respondent is that it did not participate in the taxation proceedings because of structural and administrative changes being experienced in its Legal and Claims departments at the time. There is no evidence produced to the court to support that claim. 23. In my considered view, it is not enough to state that the Respondent or its representative could not attend court for purposes of taxation of bill of costs, even though it was aware of the date, because it was undergoing structural and administrative changes in its legal department. The Respondent could have sought audience with the Applicant and seek another date to attend court to allow it finalize with its changes. In my view, the explanations given are not sufficient to persuade this court to rule in favour of the Respondent. 24. While I am aware that “an arguable appeal need not (be one that will) succeed so long as it raises a bona fide issue for determination by the Court” as was stated by the Court of Appeal in Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited [2020] KECA 361 (KLR), it is my finding that the Respondent has not persuaded me to rule in its favour, especially due to insufficient reasons given for not attending the taxation proceedings even when it was aware of the same. 25. Consequently, the Chamber Summons dated 10.11.2025 is hereby dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED THIS 14TH DAY OF APRIL 2026. S. N. MUTUKU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7409/eng@2026-04-14 4

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