S.m. Chege & Co. Advocates v Cannon General Insurance Co. Ltd

4. It was deposed, further, that the learned taxing officer erred by taxing item 1 of the Bill of Costs under paragraph 1(b) of the Advocates (Amendment) (Remuneration) Order 2014 instead of taxing it under paragraph 1(c) of Schedule 7 of the Advocates (Amendment) (Remuneration) Order 2014; that the learned taxing officer erred in awarding items 2, 8, 10, 13, 15, 19, 21 and 25 of the Bill of Costs under paragraph 6 of the Advocates (Amendment) (Remuneration) Order instead of under Schedule 7 of the said Order; that the taxing officer fell into in taxing items 4, 16, 23, 27 and 30 under paragraph 4 when the same are not provided for under Schedule 7 and that the taxation of items 5, 6. 7, 24, 26 and 31 under paragraph 5 was erroneous. 5. The Applicant further faulted the taxing officer for taxing item 33 without any supporting evidence. Grounds of Opposition 6. The Respondent has opposed the application through Grounds of Opposition dated 6/09/2025 in which the following grounds are raised: i. That the Respondent/Applicant is guilty of laches for Sixty-Seven (67) days and does not deserve discretionary orders. ii. That no sufficient reasons if at all have been given for the delay. iii. That the Respondent’s/Applicant’s intended Reference is an afterthought. iv. That the Learned Taxing Master judiciously exercised his discretion in taxing the Bill of Costs. Submissions 7. The application was canvassed through written submissions. 8. To support the Application, the Applicant has anchored its submissions on the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) where the Supreme Court laid down the principles applicable in determining an application seeking an extension of time and the case of Nyakundi & Co. Advocates v Kenyatta National Hospital Board [2005] eKLR where the court held that upon lapse of the statutory timelines for filing a Reference, an Objector who wishes to challenge a taxation ruling may move the High Court under Rule 11 of the Advocates (Remuneration) Order which makes provision for the enlargement of time for filing a Reference. 9. The Applicant submitted that pursuant to Rule 11(4) of the Advocates (Remuneration) Order, the court has discretionary power to enlarge the timelines for lodging a Reference, where sufficient cause has been shown. It was submitted that in assessing the Bill of Costs herein, the learned taxing officer committed an error of principle by assessing item 1 being the instruction fees, under paragraph 1(c) of Schedule 6 instead of paragraph 1(b) of Schedule 7. 10. The Applicant found fault in the manner the taxing officer taxed items 3, 4, 5, 6, 8, 9, 10, 11, 13 to 19, 21 to 27, 30, 31 and 33 arguing that the same are not provided for under Schedule 7 and therefore ought to have been taxed off; that the assessment of items 7, 12, 20, 28 and 29 ought to be revised downwards and that item 13 being unsupported by evidence, ought to be taxed off. 11. The Respondent, on the other hand, relied on the decision in Gathuka Ngugi Advocates v Backlite Limited [2025] KEHC 4474 (KLR) (Commercial and Tax) (8 April 2025) (Ruling) where the court in declining to enlarge the time required, reasoned that an applicant ought to account for the period of delay, to the court’s satisfaction, otherwise the court is entitled to exercise its discretion in declining to extend the timelines. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7418/eng@2026-04-21 2

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12. The Respondent 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 on a case-by-case basis and upon a reasonable explanation being offered, that in the present instance, the delay of over 67 days on the part of the Applicant in moving the court is not only unreasonable, but is also unexplained; that no evidence has been tendered to support the reasons for delay set out both in the Reference and further affidavit and that in the present instance, the purported inadvertence on the part of the Applicant’s advocate is merely speculative. 13. The Respondent cited John Kasimu Kilatya v Chairman Machakos Land Dispute Tribunal & 2 others [2015] eKLR, in support of its submissions, where it was held that the excuse of ‘mistake of counsel’ can only hold where the same has been reasonably explained. 14. The Respondent has separately contended that the Applicant cannot invoke Article 159(2)(d) of the Constitution to persuade the court to exercise its discretion in its favour, since the legal position is that the cited provision does not act as a panacea for any and all actions and omissions, as was rendered by the Court of Appeal in the case of Kakuta Maimai Hamisi v Peris Pesi Tobiko, Independent Electoral and Boundary Commission (IEBC) & Returning Officer Kajiado East Constituency [2013] KECA 279 (KLR). 15. On the merits of the Reference, it is the Respondent’s submission that the instruction fees were properly and judiciously assessed at Kshs. 60,000/- and that the same ought to be upheld and that the other various items whose assessment is being challenged, the same were drawn to scale and need not be disturbed. 16. The Respondent has sought the dismissal of the application with costs to the Respondent. Analysis and Determination 17. I have considered the Application and the grounds in support as well as the Grounds of Opposition, parties’ submissions and authorities relied on. I have read Paragraph 11 of the Advocates (Remuneration) Order, 2014 which provides for the procedure for objecting to a decision on taxation and on the filing of a Reference, as seen hereunder: “ (1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects. (2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by Chamber Summons, which shall be served on all the parties concerned, setting out the grounds of his objection. (3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subparagraph (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal. (4) 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7418/eng@2026-04-21 3

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or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired. 18. It is clear that whether or not to enlarge time to do a certain act lies with the discretion of the court. To my mind, a Reference operates as an appeal against the decision of the taxing officer. Consequently, the general principles governing the enlargement or extension of time for filing an appeal would apply in such a case. 19. The Supreme Court, in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), laid down the following, inter alia: 20. “ 1. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; 3. Whether the court should exercise the discretion to extend time, is a consideration to be made a case- to-case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; 5. Whether there will be any prejudice suffered by the Respondent if the extension is granted; 6. Whether the application has been brought without undue delay. 7. ......” I have considered the issue of delay in filing the application. The applicable legal principle is that both the duration and explanation of delay are key considerations in determining whether to extend time, as shown in the Court of Appeal decision in Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 Others [2019] eKLR when it was 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. In the instant matter, the Reference was filed within three (3) months from the date of delivery of the taxation ruling on 29/05/2025. This may not be considered as inordinate. However, this is not the only consideration of matters of this nature. The Applicant must satisfy the court the reasons behind that delay. The explanation given by the Applicant in this matter is that the delay in filing within time was occasioned by internal administrative and transitional changes in the legal department which resulted in inadvertence on the part of the advocates. The Applicant has urged that this inadvertence on the part of its counsel, ought not to be extended to it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7418/eng@2026-04-21 4

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22. I have applied my mind to the principle that the mistake or inadvertence of an advocate should not be visited upon the client, see the Court of Appeal decision in the case of Philip Chemwolo & Another v Augustine Kubede [1982-88] KAR, 103 where it stated that: “ Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not the purpose of imposing discipline.” 23. I am also alive to the principle that a case belongs to the litigant and not his/her counsel and that equity does not aid the indolent. While I have noted that there is no material tendered to demonstrate that there were transitional changes taking place within the Applicant’s internal legal team representing the Applicant, I hold the view that whatever changes that were taking place, if any, at the Applicant’s Office in terms of the internal legal team, nothing would have stopped the Applicant from following up on the matters in court. There were available options to ensure that matters in court were tracked and appropriate action taken. The fact that it took 44 days, or whatever time it took the Applicant to become aware that a ruling had been delivered, means that the Applicant was not following up on its multiple cases in court, after all the multiple cases facing the Applicant belonged to it and not to its advocates. Proper diarizing and follow up would have ensured that all matters before the court were tracked and acted upon appropriately. The fact that appropriate action was not taken within the acceptable timelines means that the Applicant was indolent. 24. Drawing from the Salat v Independent Electoral and Boundaries Commission & 7 others case cited above, extension of time is not a matter of right of any party, but an equitable remedy that is only available to a deserving party at the discretion of the court. Further, the Applicant has not discharged the burden of laying the basis to the satisfaction of the court to persuade me to exercise my discretion in his favour for the reason that the reasons for the delay are not satisfactory. 25. Secondly, the Applicant is seeking an order for review and/or setting aside of the taxation ruling delivered on 27/06/2025. It is my considered view that having found that the Applicant has not demonstrated sufficient reasons to persuade this court to exercise its discretion in his favour, it follows that the application fails and this court cannot proceed to review and/or set aside the taxation ruling dated 22/6/2025. 26. Consequently, the Chamber Summons Reference dated 5/08/2025 is hereby dismissed with costs to the Respondent. 27. It is so ordered. DATED, SIGNED AND DELIVERED THIS 21ST DAY OF APRIL 2026. S. N. MUTUKU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7418/eng@2026-04-21 5

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