Sm Chege & Co Advocates v Cannon General Insurance Co Ltd

3. On the merits of the Reference, it is stated that the learned taxing officer erred by applying Schedule 6 as opposed to Schedule 7 of the Advocates (Remuneration) (Amendment) Order 2014 in taxing the Bill of Costs and in awarding items not provided for under Schedule 7 thereof. 4. It is for those reasons, that the deponent urges that the Reference be allowed as prayed. The Grounds of Opposition 5. The Application is opposed by the Respondent who has put in the Grounds of Opposition dated 3/09/2025 on the following grounds: a. That the Respondent/Applicant is guilty of laches for Fort- Four (44) days and does not deserve discretionary orders. b. That no sufficient reasons, if at all, have been given for the delay. c. That this Honourable Court has inherent powers to correct an arithmetic error on the face of the record without the need to file a Reference. d. That the Learned Taxing Master applied the correct provisions of the Advocates Remuneration Order 2014 in taxing the Party and Party Bill of Costs. e. That the application seeks to file a reference for a ruling of the taxing master that has partially been complied with. Further Affidavit 6. Pursuant to leave granted by the court on 19/02/2026, the Applicant, through his Advocate Mr. Wabugu Gitonga, swore a further affidavit on 20/02/2026, in which he has averred, inter alia, that at the time of taxation, the Applicant’s Legal Team was undergoing a transition which necessitated time to enable the incoming team adjust and familiarize itself with all pending matters. 7. It was further deposed that during the intervening period, there were several taxation proceedings running concurrently between the parties herein, which were not immediately brought to the attention of the Applicant 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; 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; that the delay in timeously filing a Reference was therefore occasioned by mistake of counsel for which the Applicant herein should not be faulted; that the delay is neither inordinate nor unexplainable and that no prejudice will be occasioned to the Respondent if the Reference is allowed. Submissions 8. The Applicant 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 out the principles applicable in determining an application seeking an extension of time and the case of Lelei & 2 others v Kimetto & 30 others [2024] KEELC 1220 (KLR) where the court held that a client should not be punished for the inadvertence of his or her advocate, or to be denied an opportunity to be heard on merit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7448/eng@2026-04-21 2

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9. The Applicant submitted that pursuant to Rule 11(4) of the Advocates (Remuneration) Order, this court has discretionary power to enlarge the timelines for lodging a Reference, where sufficient cause has been shown. 10. On the merits of the application, it is the Applicant’s submission that in assessing the Bill of Costs, the learned taxing officer committed an error of principle by firstly applying a wrong Schedule (namely, Schedule 6) of the Advocates (Remuneration) Order notwithstanding the fact that the applicable provision is Schedule 7 since the taxation proceedings emanated from a claim before the Small Claims Court. 11. The Applicant has challenged the awards made on items 1 (instruction fees); items 5 to 8 (attendances); item 10 (drawing of the Bill of Costs); item 11 (making copies); item 12 (court filing fees), all of which the Applicant claims ought to have been taxed under Schedule 7. Further, it is claimed that items 2, 3, 4 and 9 ought to have been taxed off since the same are not provided for under Schedule 7. 12. On those grounds, the Applicant has urged that the Reference be allowed as prayed. 13. The Respondent has anchored its submissions 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. 14. 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 application, the delay of over 44 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 the further affidavit and that in the present instance, the purported inadvertence on the part of the Applicant’s advocate is merely speculative. 15. The Respondent has drawn the court’s attention to the decision in John Kasimu Kilatya v Chairman Machakos Land Dispute Tribunal & 2 others [2015] eKLR where it was held that the excuse of ‘mistake of counsel’ can only hold where the same has been reasonably explained. 16. The Respondent has 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 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). 17. The Respondent has maintained that the instant Reference is a mere afterthought and ought to be declined while the taxation ruling ought to be upheld, the same having been arrived at judiciously. Analysis and Determination 18. I have considered the Reference, the Grounds of Opposition, the Applicant’s Further Affidavit and the rival submissions and authorities cited. Firstly, the Applicant is seeking enlargement of time for filing the Reference. 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 seen hereunder: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7448/eng@2026-04-21 3

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19. 20. (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. Under Paragraph 11 (4) of that Order, the court is clothed with discretion to enlarge time within which to act as provided under Paragraph 11 (1) and 11 (2) of the Order. From the above provisions, it is settled that whether or not to grant an enlargement of time lies with the discretion of the court. To my mind, a Reference operates as an appeal against a taxation ruling or decision rendered by a taxing officer. Consequently, the general principles governing the enlargement or extension of time for filing an appeal would apply. I am drawn to the Supreme Court decision in the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), where the applicable principles were stated as follows: “ 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. ......” In considering the issue of delay, the legal principle is that both the duration of the delay and the explanation for that delay are key in determining whether to extend time. See the Court of Appeal decision in Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 Others [2019] eKLR, where the Court 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 this matter, the ruling on taxation was delivered on 22/6/2025 and the Reference was filed after a period of 44 days from the date of delivery of that ruling. This period of delay may not be considered as https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7448/eng@2026-04-21 4

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inordinate. However, of importance to this court is the reasons for such delay, whether the Applicant has provided plausible and satisfactory explanation for the delay and whether the reasons provided are valid. 22. The Applicant has offered the explanation that, the delay was occasioned by the changes happening within the Applicant in respect of its Legal Team. It is noteworthy that these explanations were not contained in the Supporting Affidavit to the instant application or on the body of the Chamber Summons. They are contained in a Further Replying Affidavit of the Applicant dated 20/2/2026. This was after the Respondent has filed submissions, a fact objected to by the counsel for the Respondent. 23. I have applied my mind to the principle 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 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.” 24. 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. 25. 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. 26. 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. 27. Consequently, the Chamber Summons Reference dated 5/08/2025 is hereby dismissed with costs to the Respondent. 28. It is so ordered. DATED, SIGNED AND DELIVERED THIS 21ST DAY OF APRIL 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7448/eng@2026-04-21 5

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S. N. MUTUKU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7448/eng@2026-04-21 6

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