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

Advocates (Amendment) (Remuneration) Order 2014 given that no appearance had been entered in the matter and by taxing item 27 in the Bill of Costs, in the absence of supporting evidence warranting such taxation. Grounds of Opposition 4. The Respondent has opposed the Reference through Grounds of Opposition dated 8/12/2025 to the effect that: i. That the Respondent/Applicant is guilty of laches does not deserve discretionary orders. ii. That the Learned Taxing Master judiciously exercised his discretion in taxing the Bill of Costs. iii. That the Learned Taxing Master did not err in law or principle in making the awards on items 1 and 27 of the Bill of Costs and the same should be upheld. iv. That this Reference is an attempt to continue delaying payment of fees to the Advocate. v. That the Learned Taxing Master applied the correct provisions of the Advocates Remuneration Order 2014 in taxing the Bill of Costs. Further Affidavit 5. The Applicant filed a Further Affidavit sworn by Wambugu Gitonga on 20/02/2026 in which it is deposed, inter alia, that at the time of taxation, the Applicant’s Legal Team was undergoing transition which necessitated time to enable the incoming team adjust and familiarize itself with all pending matters; that during the intervening period, there were several taxation proceedings running concurrently between the parties herein and which were not immediately brought to his attention until late July or early August, 2025 by which time the taxation ruling had been delivered and the 14-day statutory timelines for filing a Reference had lapsed and that as soon as the existence of the taxation ruling herein was discovered, the Applicant’s advocate took proactive steps in preparing and filing the Reference. 6. It was further deposed that the delay in timeously filing a Reference was occasioned by the administrative mistake of counsel for which the Applicant herein should not be faulted and that the delay is neither inordinate nor unexplainable. Submissions 7. In its submissions in support of the application, the Applicant relied on the case of 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, and submitted that in assessing the Bill of Costs, the learned taxing master committed various errors of law and principle, thereby necessitating a disturbance of the taxation ruling. The Applicant urged this court to be guided by the case of Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd [1972] EA 162 where the Court of Appeal held that where it is established that a taxing master applied a wrong principle in arriving at his or her decision, the court is permitted to interfere with the said decision. 8. The Applicant’s specifically pointed out the errors attributed to the taxing master to the effect that he assessed instruction fees under paragraph 1(c) of Schedule 7 of the Advocates (Remuneration) Order, when the applicable provision was paragraph 1(a) of the said Schedule. The Applicant cited Republic v Minister for Agriculture & 2 others ex parte Samuel Muchiri W’ Njuguna [2006] eKLR where it was restated that a taxing master is obligated to adhere to mandatory provisions in assessing costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7420/eng@2026-04-21 2

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9. The Applicant further argued that the learned taxing master committed an error by assessing costs in respect of item 27 in the absence of any supporting documentation. 10. The Respondent relied on 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 and 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 on the part of the Applicant in moving the court is not only unreasonable, but is also unexplained and that no evidence has been tendered to support the reasons for delay set out both in the Reference and the further affidavit. 11. It is the Respondent’s submission thatf 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 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). 12. The Respondent has contended that the learned taxing master exercised his discretion judiciously in taxing the Bill of Costs and that the relevant items were taxed to scale. Analysis and Determination 13. I have considered the application and the grounds supporting it. I have considered the Grounds of Opposition and the submissions of parties. 14. I have also considered Paragraph 11 of the Advocates (Remuneration) Order, 2014 provides for the procedure for objecting to a decision on taxation and on the filing of a Reference, as followed: “ (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/2026/7420/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. 15. 16. To extent time or to decline to do so lies with the discretion of the court. The general principles governing the enlargement or extension of time to an applicant to file an appeal or an application of this nature have been settled. In Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), the Supreme Court laid down the following principles, inter alia: cited in “ 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. ......” With the said principles in mind, I have considered the explanation offered by the applicant in respect of the delay in filing the Reference within time. In determining the issue of delay, both the duration of the delay and the explanation of delay are key considerations in deciding whether to extend time or not. See the Court of Appeal decision in Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 Others [2019] eKLR where 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……” 17. The record shows that the Advocate-Client Bill of Costs dated 5/02/2025 was assessed and a ruling delivered on 11/07/2025 with this application being filed one (1) month from the date of delivery of the taxation ruling. This may not be considered as an inordinate delay. However, the period of delay is not the only the issue to be considered. There is the issue of the reason for that delay. Where the reasons given are not to the satisfaction of the court, and considering that equity will not aid the indolent litigant, then the court may decline to grant extension of time sought. 18. The reasons for the delay in filing the Reference has been given by the Applicant to the effect that the Applicant had multiple matters pending taxation in court at a time when the internal legal team was on transition. This matter, among other matters before this court, was affected by that transition. In other words, the Applicant, through its agents, failed to act appropriately by filing the Reference within time because it was busy with transition. That may have been the case. However, what the Applicant is doing is admitting that it was too busy making the transition that it forgot to follow up its matters in court. This, by any standards, is not a satisfactory reason, not according to my considered view. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7420/eng@2026-04-21 4

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19. The consequences of non-action in matters in court are well known and no party or legal counsel can overlook such consequences no matter how busy they are. There are options available to buy time. They could have sought an adjournment by writing to the court or engaging the other counsel to indulge them. 20. It is trite that the mistake or inadvertence of an advocate should not be visited upon the client, as stated by the Court of Appeal in the case of Philip Chemwolo & Another v Augustine Kubede [1982-88] KAR 103 cited in the Applicant’s submissions, 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.” 21. I am also aware that a case belongs to the litigant and that equity does not aid the indolent. Therefore, it my considered view, drawing from the Salat v Independent Electoral and Boundaries Commission & 7 others case cited above, that 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. 22. Secondly, the Applicant is seeking an order for review and/or setting aside of the taxation ruling delivered on 22/06/2025. 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. 23. Consequently, the Chamber Summons Reference dated 5/08/2025 is hereby dismissed with costs to the Respondent. 24. 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/2026/7420/eng@2026-04-21 5

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