https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11533

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **MISC E625 OF 2022** **BILLY AMENDI & COMPANY ADVOCATES..............................................APPLICANT** **VERSUS** **FLORA ANITA ANYASI............................................................................RESPONDENT** **RULING** 1. The applicant/ advocate filed the chamber summons dated 5.3.2025 under **Rule 11 (1) (2) and (4) of the Advocates Remuneration Order (ARO).** 2. It challenges the taxation ruling dated 13.2.2025 by **Hon. Shimenga (SRM)** dismissing its bill of costs dated 26.8.2022 regarding instructions to act in **SCCOMM No. E3663 of 2022**. 3. The significant orders sought are: - 4. **enlargement of time for filing the reference,** 5. **an order for stay of execution of costs until re-taxation or further orders of the court,** 6. **review, varying or setting aside of the taxation ruling, or alternatively, resubmission of the bill of costs dated 26.8.2022 for taxation before a different taxing officer.** 7. The application is supported by the affidavit sworn by Advocate **Billy Amendi** on 5.3.3035. The main ground is that the taxing officer erred in principle. 8. The gravamen is that despite the dispute regarding the existence of a fee agreement and the same not being produced, the taxing officer held that there was a fee agreement. 9. The applicant also contended that the taxing officer was biased in her decision. It faulted the taxing officer for deliberately refusing to interrogate the issue of further fees despite the same not being contested by the client. It explained that the delay in filing the reference was due to the bereavement of his sister. **Response** 1. The respondent opposed the application through a replying affidavit sworn on 21.7.2025 and written submissions dated 21.7.2025. 2. The respondent asserted that there was a fee agreement that she would pay the applicant Kshs. 100,000/- all-inclusive for representing her in the case. She intimated that after the conclusion of the case, the applicant received the full settlement sum of Kshs. 750,000 paid by the respondent via cheque dated 13.7.2022. That on 26.7.2022, the applicant disbursed Kshs. 300,000 to her and indicated that it would remit the balance of Kshs. 450,000 to her on 4.8.2022. That however, on 4.8.2022, no payment was made to her. 3. The respondent underlined several subsequent written acknowledgements of debt by the applicant and contended that it cannot credibly deny the fee agreement after expressing commitments to payment. 4. The respondent argued that the applicant’s failure to file the reference in time is unexplained save for an unverified claim of bereavement, with no certificate of death produced in proof. 5. The respondent urged the court to dismiss the application, uphold the taxation ruling and direct the applicant to immediately account for and remit Kshs. 400,000/- to her. **Analysis and Determination** **Enlargement of time to file the reference** 1. The first issue is whether the time for filing the reference should be enlarged. 2. **Para. 11 of the Advocates Remuneration Order provides that: -** **“(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 subsection (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 or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.”** 1. Discussing the principles for enlargement of time in **Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 Others [supra], Ashmore v Corp of Lloyd’s [1992] All ER 486**, the Supreme Court stated that: - ***“Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”*** 1. The instant application dated 5.3.2025, challenges the taxation ruling dated 13.2.2025. 2. From para. 11 of the ARO, the application ought to have been filed 14 days after the ruling. 3. The period of delay is about 6 days. Thus, the delay is not inordinate. 4. The explanation for delay by the applicant is that the delay is due to bereavement of the sister. 5. Guided by **Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR**, I find that the applicant has given a sufficient reason for the delay. 6. However, the next Prayer for review negates any need for enlargement of time to file reference. It has argued the reference. As it is the applicant’s application, I am mandated to decide on it on the basis of the power of review. **Review, varying or setting aside of the taxation ruling, or alternatively, resubmission of the bill of costs dated 26.8.2022 for taxation before a different taxing officer.** 1. The applicant must show that the Taxing Officer acted on the wrong principles or arrived at a manifestly excessive taxation. **First American Bank of Kenya Ltd v Shah & 2 others [2002] KEHC 1277 (KLR)** 2. The applicant contended that the taxing officer erred in principle by holding that there was a fee agreement despite the dispute regarding the existence of a fee agreement and the same not being produced. It also contended that the taxing officer was biased in her decision. It faulted the taxing officer for deliberately refusing to interrogate the issue of further fees despite the same not being contested by the respondent. 3. Conversely, the respondent asserted that there was a fee agreement and written commitments by the applicant to refund her Kshs. 400,000/-. 4. The respondent exhibited the cheque dated 13.7.2022 issued to the applicant for the settlement of Kshs. 750,000/-. She also exhibited a cheque in her favour dated 26.7.2022 from the applicant for Kshs. 300,000/-. 5. The respondent further exhibited letters dated 8.8.2022 and 19.8.2022 addressed to her from the applicant. In the former, the applicant stated that the balance of Kshs. 400,000 would be released to her in two installments of Kshs. 200,000 on 18.8.2022 and Kshs. 200,000 on 30.8.2022. 6. In the latter, the applicant indicated that the 2nd payment would be paid on 30.8.2022 and the balance 15 calendar days thereafter. 7. In the impugned ruling, the taxing officer held that **“from the correspondences between the Applicant and the Respondent, it is quite clear that there was a fee agreement between the Applicant and the respondent herein.”** 8. This conforms to the evidence on record. **Disposal** 1. In conclusion, the applicant has not shown an error of principle to warrant interference with the taxing officer’s ruling. 2. Prayers 3, 4 and 5 of the application dated 5.3.2025 are dismissed. Costs of the application are awarded to the respondent. 3. Nonetheless, leave to file the reference is granted. I lament that the approach adopted by the applicant converts into an impediment. **Dated, signed and delivered through Microsoft Teams online application this 23rd day of July, 2026** **-----------------** **F. Gikonyo M** **Judge** **In the presence of: -** Ms Khamala for Applicant Matagaro for Respondent CA- Aggrey