REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL DIVISION MISCELLANEOUS CIVIL APPLICATION NO. 499 of 2012 MEREKA & COMPANY ADVOCATES..........................APPLICANT =VERSUS= NEW KENYA CO-OPERATIVE CREAMERIES LIMITED................................................RESPONDENT RULING 1. NEW KENYA CO-OPERATIVE CREAMERIES LIMITED the Respondent instructed its Advocate MEREKA AND COMPANY ADVOCATES to advertise a Caveat Emptor Notice to the public; draft individual affidavits for 16 titles for the purpose of Kenya Anti-Corruption Commission (KACC, now the Ethics and Anti-Corruption Commission- EACC) for their further action; and to deal with any case/ legal issue that would arise as a result of the said notices and the exercise. 2. The instructions were through a letter dated 11 th October 2010. Pursuant to them, the Advocate prepared one Caveat Emptor Notice for all the sixteen (16) titles. He also prepared thirteen (13) Affidavits. On 3rd January, 2011 the Company withdrew the said instructions it had issued to the firm. 3. The Advocate then filed an Advocate-Client Bill of Costs seeking Ksh 117,532,374= as legal fees for that work. The NAIROBI HC Misc Civil Application No. 499 of 2012 1
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bill was dated 13th September 2012, was subsequently taxed at Ksh 32,191,940=. Aggrieved by that taxation, the Client filed a Reference against it. 4. The Reference which was by a Chamber Summons dated 2nd April 2025 was allowed. On the ground that the Instruction Fees as taxed by the taxing officer, was manifestly excessive. As that the matter did not proceed to court and the work done was not complex or time consuming. 5. The Judge (Njuguna, J) allowed the Reference, and remitted the Bill to re-taxation. The Bill was subsequently re-taxed at Ksh 8,171,594=. The taxation was delivered without the Client after it failed to attend the re-taxation. The Client is now seeking leave to file a Reference against the said retaxation. On the ground that the amount of Ksh 8,171,594= is manifestly excessive as to justify an inference that the Taxing Officer acted on wrong principles. 6. The Client is now seeking leave to file the Reference out of time. Its explanation for the delay being that it was not aware of the ruling date and that the ruling was delivered in its absence. 7. The Advocates Remuneration Order sets very strict timelines which start running upon delivery of the taxation decision. They are strict time lines and begin running immediately the decision is delivered. Such that it can be problematic where the decision is delivered in the absence of the party aggrieved, and that party was not immediately made aware of it. 8. It will be unjust to lock out this Client from filing a Reference against a taxation that it did not participate in; and which it was not promptly made aware of. The right to NAIROBI HC Misc Civil Application No. 499 of 2012 2
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be heard is a cardinal focal point in our constitutional dispensation. It frowns upon anyone being condemned unheard, or being left to suffer without being afforded a hearing. The right to file Reference will be worthless if one was not afforded the opportunity to approach the court. 9. On an Application to file out of time or do anything out of time, a court has to consider the following: a) The direction of the delay; b) The reasons given for the delay; c) The prejudice that the adversary is likely to suffer if the leave were granted; and d) That the power to extend or enlarge time or to allow a party to file out of time, is a discretionary one. 10. I have considered the reasons that the Client has given in this Application, for the delay. I find that (a) The Client is not to blame for failing to file the Reference within the prescribed time; (b) The explanation and reasons given by it, as the ones that caused the delay, are reasonable and convincing; (c) The delay is excusable hence not inordinate; (d) The Client is not guilty of any conduct that makes it underserving of the court’s discretion; (e) The Advocate will not suffer any demonstrated prejudice if the leave sought is granted- in any case, when the Reference will be filed, the advocate will have an opportunity to oppose it. 11. As for questions relating to the merits of the intended Reference, those should be reserved for now. They will be gone into when the Reference has already been filed and it is being determined. Not at this stage when all that is being sought is leave to file the Reference out of time. NAIROBI HC Misc Civil Application No. 499 of 2012 3
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12. Deliberating on that now and then again revisiting it at the hearing of the reference will be imprudent use of the scarce judicial time and resources. Besides, that will also be hypothetical exercise, as it will be tantamount to determining a Reference that has not been filed yet and which is therefore not before the court. 13. In the end therefore, the Client’s Application dated 28th February 2024 is hereby allowed. Consequently, the Client is granted leave to file a Reference out of time, against the taxation decision delivered in this matter, by Hon E. WAMBO (Taxing Officer) on March 2025. 14. The Reference be filed within 14 days from the date of this ruling. Between now and the lapse of those 14 days, there shall be a temporary stay of execution of the Certificate of Taxation issued herein on 25th March 2025. 15. The costs of this Application shall be in the cause. DATED and DELIVERED at NAROBI Virtually on this 2 nd day of July 2026. PROF (DR) NIXON SIFUNA JUDGE NAIROBI HC Misc Civil Application No. 499 of 2012 4
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