https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12119

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **HCCOMMMISC/E1042/2025** **LINDA NELLY CHEPKORIR……………………………………………….1ST APPLICANT** **LYN-CET VENTURES LIMITED………………………………………..…..2ND APPLICANT** **VERSUS** **TABUT AND TABUT ADVOCATES………..……………………………...RESPONDENT** **RULING** 1. Before the Court is the Applicant’s chamber summons application dated 21st October, 2025 brought pursuant to Rule 11 (2) of the Advocates (Remuneration) Order, seeking the following orders:- 2. *The decision of the taxing officer made on 23rd September 2025 in relation to Advocate/Client Bill of costs dated 16th May, 2025 be set aside* 3. *The Advocate’s bill of costs be remitted back for re-taxation before a different taxing officer* 4. *In the alternative, the court be pleased to tax the item afresh at such sum as it deems reasonable and just* 5. *The Honorable court be pleased to enlarge the time within which the Applicant/client may file this Reference and the same be deemed as duly filed and properly on record* 6. *The costs of the application be provided for* 7. The application was supported by the Affidavit of Linda Nelly Chepkorir sworn on 21st October 2025. The main contention of the Applicants is that they are dissatisfied with the Taxing Master's ruling delivered on 23rd September 2025, which taxed the Advocate-Client Bill of Costs at Kshs. 209,918.75/= and adding 16% VAT comes to a total of Kshs. 243,505.75.=. 8. They contend that the Taxing Master failed to provide reasons for the taxation despite their notice of objection, committed errors of principle in assessing the bill, and that the delay in filing the reference was occasioned by the late receipt of the Taxing Master's reasons. 9. They seek enlargement of time to file the reference and pray that the taxation be set aside and the Advocate-Client Bill of Costs be taxed afresh. 10. The application was opposed through the Replying Affidavit of Victoria Jepkemboi Tabut sworn on 23rd October, 2025 on behalf of the Respondent. The Respondent contends that the application and the intended reference are incompetent, arguing that the Applicants failed to first obtain leave to file the reference out of time as required under Rule 11(4) of the Advocates (Remuneration) Order. 11. It is further averred that the delay of twenty-seven (27) days after receipt of the Taxing Master's ruling is inordinate and unexplained, the Taxing Master's reasons were contained in the ruling delivered on 23rd September 2025, and the Applicants' assertion that reasons were unavailable is therefore misleading. 12. The Respondent further maintains that the High Court lacks jurisdiction to tax the Advocate-Client Bill of Costs in the first instance, that any challenge to the taxation is premature and incompetent, and consequently urges the Court to strike out the application with costs. **APPLICANTS’ SUBMISSIONS** 1. The Applicants submit that the Taxing Officer awarded excessive instruction fees that were not commensurate with the work done, given that the Respondent did not draft pleadings or conduct hearings. 2. They further contend that the Taxing Officer failed to give adequate reasons, relied on a mathematical formula, and ignored the fact that the primary suit was still at the pre-trial stage. They rely on **Fredrick Otieno Outa v Jared Otieno Odoyo & 3 Others** and **Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board.** 3. The Applicants also argue that the High Court may interfere where there is an error of principle and, if justice requires, determine the instruction fees itself. On delay, they contend that the Reference was not out of time because the Taxing Officer failed to furnish reasons after the notice of objection. 4. They further rely on**Microsoft Corporation v Mitsumi Computer Garage Ltd & Another** on procedural lapses not defeating substantive justice. **RESPONDENT’S SUBMISSIONS** 1. The Respondent submits that the Taxing Officer properly exercised her discretion, gave adequate reasons in the ruling, and correctly assessed instruction fees. They argue that instruction fees accrue upon receipt of instructions regardless of the stage reached in the proceedings. They rely on **Joreth Ltd v Kigano & Associates** and **Rachier & Amollo Advocates v Noble Gases International Ltd.** 2. The Respondent further contends that the Court should not re-tax the Bill itself and may only interfere where there is an error of principle. In that event, the proper course is to remit the matter for re-taxation. 3. They rely on **Construction & Petroleum Engineering (E.A.) Ltd v Uganda Sugar Factory Ltd, Joreth Ltd v Kigano & Associates***,* and**Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board**. 4. On lateness, they submit that the ruling itself contained the reasons and that the Reference was filed out of time without leave, relying on **M/S Lubulellah & Associates Advocates v N.K Brothers Limited**. **ISSUES FOR DETERMINATION** 1. The Court finds the following as the issues 2. *Whether the Applicant has established sufficient grounds for enlargement of time to file the Reference out of time and for the Reference to be deemed as duly filed.* 3. *Whether the Taxing Officer committed an error of principle in taxing the Advocate-Client Bill of Costs, particularly with respect to instruction fees.* 4. *Whether the Court should interfere with the decision of the Taxing Officer and, if so, what is the appropriate relief.* 5. *Who should bear the costs of the Reference.* **ANALYSIS AND DETERMINATION** 1. The first issue for determination concerns whether the Applicant has established sufficient grounds for enlargement of time to file the Reference out of time and for the same to be deemed as duly filed. 2. The Respondent's primary objection is that the Reference is incompetent because it was filed outside the time stipulated under Rule 11 of the Advocates (Remuneration) Order without prior leave of the Court. The Applicants, on the other hand, maintain that the delay was occasioned by the Taxing Officer's failure to provide reasons following the notice of objection and have simultaneously sought enlargement of time under Rule 11(4). 3. Rule 11 of the Advocates (Remuneration) Order outlines the procedure for filing an objection to the decisions of the Taxing Officer, and provides as follows: - 4. *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.* 5. *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.* 6. *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.* 7. *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.* 8. Rule 11(4) further empowers the High Court to enlarge time for taking any step under the Rule. While exercising this discretion, the court is guided by several authorities with the main one being **Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR**, where the Supreme Court stated as follows: ***“Discretion to extend time is indeed unfettered but it’s incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there were extenuating circumstances that could enable the Court to exercise discretion in favour of the applicant. In doing so the following principles are applicable thus:*** 1. ***Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party.*** 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 ought to exercise discretion to extend time, is a consideration to be made on a case-to-case basis.*** 4. ***Whether there is a reasonable reason for the delay, which ought to be explained to the satisfaction of the Court.*** 5. ***Whether there would be any prejudice suffered, the respondent if the extension was granted.*** 6. ***Whether, the application had been brought without undue delay and*** 7. ***Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time."*** 8. Similarly, in **Osano v CFC Stanbic Bank Limited (Civil Appeal 249 of 2018) [2025] KEHC 4592 (KLR)**, the Court observed as follows: - ***“Extension of time is not a right of a litigant against a court, but a discretionary power of the courts, which litigants have to lay a basis where they seek courts to grant it. Further, since extension of time is a creature of equity, one can only enjoy it if he acts equitably, and therefore, one has to lay a basis that he was not at fault so as to let time to lapse.”*** 1. In the instant application, the Applicant explains the delay on the basis that, after lodging the notice of objection dated 3rd October 2025 requesting the Taxing Officer's reasons, no reasons were supplied, making it impossible to file a competent reference within the prescribed period. 2. On the other hand, the respondent maintains that the ruling delivered on 23rd September 2025 itself contained adequate reasons and that the Applicant could not suspend the running of time merely by requesting reasons already contained in the decision. 3. Having considered both rival submissions on this issue, I agree with the reasoning in the case of **Ahmednasir Abdikadir & Co. Advocates vs National Bank of Kenya Ltd (2) (2006) 1 EA 5** wherein it was held: - ***“Although rule 11 (1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the taxing officer, should do so within 14 days after the said decision and thereafter file his reference within 14 days from the date of the receipt of the reasons. Where the reasons for the taxation on the disputed items in the Bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of subrule (2) of rule 11 of the Advocates Remuneration Order demands so. The said rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling.”*** 1. The principle above was reiterated by[**Odunga J, in Evans Thiga Gaturu Advocate vs Kenya Commercial Bank Limited [2012]**](https://kenyalaw.org/akn/ke/judgment/kehc/2012/4274) eKLR , in which he stated ***“It is therefore clear that the interpretation by the court especially the High Court on this issue is far and varied. In my view, where no reasons appear on the face of the decision of the taxing master, it is only prudent that such reasons be furnished in order for the judge to make an informed decision as to whether or not the discretion of the taxing master was exercised on sound legal principles. However, where there are reasons on the face of the decisions, it would be futile to expect the taxing officer to furnish further reasons. The sufficiency or otherwise is not necessarily a bar to the filing of a reference since that insufficiency may be the very reason for preferring a reference.”*** 1. The first task of this Court is therefore to examine the impugned ruling to determine whether it satisfies the requirement of "reasons" contemplated under Rule 11(2). Having carefully considered the ruling of the Taxing Officer, I am satisfied that it does. 2. The Taxing Officer did not merely indicate the sums allowed. She identified the issue for determination, namely the assessment of instruction fees; cited and applied **Joreth Ltd v Kigano & Associates (2002) eKLR** on the principles governing instruction fees; found that the value of the subject matter was ascertainable from the pleadings at Kshs. 3,896,750/=; determined that Schedule 7 of the Advocates (Remuneration) Order was applicable; considered the parties' arguments regarding whether an advocate who had taken over conduct of the matter from another firm was entitled to full instruction fees; relied on **Rachier & Amollo Advocates v Noble Gases International Ltd** on when instruction fees accrue; and thereafter demonstrated the mathematical computation leading to the amount taxed under Item 1 before taxing the remaining items as drawn. 3. In the Court's view, those findings constitute the reasons contemplated under Rule 11(2). They disclose both the legal principles applied and the factual basis upon which the Taxing Officer exercised her discretion. The Applicant's subsequent request for reasons did not therefore suspend or extend the statutory timelines for filing a reference. 4. Consequently, time for filing the Reference began to run from the date of delivery of the ruling, or at the latest from the date when the ruling became available to the parties. The Applicant was therefore required to lodge the Reference within the period prescribed under Rule 11 unless enlargement of time was justified by some other sufficient cause. 5. Apart from asserting that the Taxing Officer did not furnish separate reasons, the Applicant has not offered any independent explanation for the delay. Since this Court has found that the ruling itself contained adequate reasons, the explanation advanced ceases to be available. In those circumstances, the delay remains unexplained. 6. Accordingly, I find that the Applicant has not established sufficient grounds for extension of time under Rule 11(4) of the Advocates (Remuneration) Order. The prayer seeking enlargement of time is therefore declined. 7. Regarding Issues No. 2 and 3, having found that the Applicant has failed to establish sufficient grounds for enlargement of time under Rule 11(4) of the Advocates (Remuneration) Order, it follows that the Reference cannot be deemed as duly filed and consequently remains incompetent. In the absence of a competent Reference, this Court lacks the procedural basis upon which to interrogate the merits of the Taxing Officer's decision or determine whether an error of principle was committed. 8. Having declined to enlarge time, it would therefore be inappropriate for this Court to consider whether the Taxing Officer committed an error of principle or whether the Advocate-Client Bill of Costs ought to be set aside and remitted for re-taxation. Those issues only arise where there is a competent Reference properly before the Court. Accordingly, Issues No. 2 and 3 do not arise for determination, and the Court need not pronounce itself thereon. 9. As regards costs, the general principle under section 27 of the Civil Procedure Act is that costs follow the event unless the Court, for good reason, orders otherwise. This position was affirmed by the Supreme Court in the case of **Rai & 3 others v Rai & 4 others (Petition 4 of 2012) [2014] KESC 31 (KLR)** where the court stated inter alia:- ***“So the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit.”*** 1. The Respondent having successfully opposed the application, there is no reason to depart from the general rule. Accordingly, the costs of the application shall be borne by the Applicant. **DISPOSITION** 1. In the result, the Court finds that the Applicant has failed to demonstrate sufficient cause to warrant enlargement of time under Rule 11(4) of the Advocates (Remuneration) Order. Consequently, the prayer for enlargement of time is declined and the Reference is not deemed as duly filed. 2. In the absence of a competent Reference, the Court declines to consider the substantive challenge to the taxation, as Issues No. 2 and 3 do not arise for determination. 3. Accordingly, the Chamber Summons dated 21st October 2025 is dismissed with costs to the Respondent. **DATED and DELIVERED at NAIROBI this 30th day of July 2026.** **BENARD WAFULA MURUNGA** **JUDGE** HIGH COURT OF KENYA In the presence of: *Opere for the Applicant* *N/A for the Respondents* *Court Assistant: Kevin Babu*