https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4826

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT SIAYA** **COURT NAME: SIAYA ENVIRONMENT AND LAND COURT** **CASE NUMBER: ELC MISC/E020/2026** **COUNTY GOVERNMENT OF SIAYA………………. APPLICANT/CLIENT** **VERSUS** **OLENDO ORARE & SAMBA ADVOCATES…RESPONDENT/ADVOCATE** **RULING** 1 The subject of this ruling is a Notice of Motion application dated 13th May, 2026. The application seeks the following orders; - 1. THAT the Applicant/Client be granted leave to file and serve Reference against Ruling/ taxation of the taxing master delivered in SIAYA MISC ELC NO. E025 OF 2025 on the 8th August, 2025 herein out of time. 2. THAT the annexed Reference herein be deemed to be duly filed and served upon grant of leave. 3. THAT there be a stay of execution of the Certificate of Taxation and, or consequential orders pending the hearing and determination of the intended Reference. 4. THAT costs of this application be approved. 2 The application seeks leave to file reference against the Ruling/taxation of the taxing master delivered in SIAYA MISC ELC NO. E025 OF 2025 dated 13th May, 2025. 3 That on the 8th May, 2026 the Honorable court dismissed the Applicant’s Reference Application in Siaya MISC. Application NO. E030 of 2025 for want of leave of time. 4 The application is premised on the grounds on its face and the supporting affidavit of Were Victor Omondi. The depositions are discussed later in this ruling. **PRELIMINARY OBJECTION** 5 The application precipitated a notice of preliminary objection dated 17th June, 2026 on the grounds that the application is res judicata the decision in SIAYA ELCL MISC. CIV APPL. NO. E030 OF 2025. **RESPONDENTS REPLYING AFFIDAVIT** 6 The respondent in addition to the Preliminary objection also responded to the application vide affidavit sworn on 17th June, 2026 by Raymond Olendo Advocate who depones as follows; - 7 That the Application is an utter demonstration of abuse of the court’s process and made in complete breach and disregard of the law. Further that the applicant is unnecessarily making this matter expensive and unreachable and at the expense of public money setting a very bad precedence in administration of justice. 8 It is deponed that the subject matter is res judicata and the court is functus officio on the issues raised in the Application. That the issue raised in the Application herein of leave to file Reference out of time ought to have been raised by the Applicant in **SIAYA ELCL MISC APPL. NO. E025 of 2025 or SIAYA ELCL MISC APPL. NO. E030 of 2025** and the same was in fact raised by the respondent in **MISC/E030/25** by preliminary objection and the court rendered a decision on it vide the ruling of 8th May, 2026. 9 That the Application is a subtle attempt to relitigate issues that have already been determined and settled or ought to have been presented when opportunities were available to the applicant. 10 It is averred that on the sight of the preliminary objection in MISC/E030/25 the Applicant had the option of withdrawing their application and file another rectifying their error but chose not to. They also had the choice to seek leave before the court that had made a determination on the Preliminary Objection and reference and with the court rendering it’s ruling it become Functus Officio. 11 That the said Application has been brought after inordinate delay and never sought leave in a pre-existing matter that would have been fast in MISC/E025/25 and they also never sought leave in MISC/EO30/25 but have filed this separate and third cause over the same issue. 12 That the reasons for the delay and complacence by the Applicant are very flimsy, concoted, blantantly untruthful and an afterthought and which ought to have been raised at the first two separate instances in MISC/E025/25 and MISC/E030/25 but none was. 13 It is further stated that the Applicant is a constitutional entity and public office with perpetual succession; it is not a sole proprietorship whose operational functions cease or travel with an individual office bearer. That it is a matter of administrative routine and judicial notice that when a public officer proceeds on leave, institutional operations continue seamlessly through designated officers. Leave is planned and pre-empted not an unforeseen calamity. 14 That the Applicant has failed to adduce any evidence demonstrating that Ms. Rowena Ndeda departed with the official case files, nor has it produced any administrative records or logs showing how the file left the custody of the County Attorney's office. The adverse naming of Ms. Rowena Ndeda who is not a party to these proceedings and has no opportunity to clear her name on a public court record is unjust and prejudicial to her professional standing. 15 That information regarding employment status on the LSK portal is submitted directly by the practitioner upon applying for practicing license renewal, confirming her continued employment with the Applicant. 16 That the Office of the County Attorney is staffed by multiple legal counsel including Mr. Okanda, Mr. Were and Mr. Omondi rendering the belated introduction of Ms. Rowena Ndeda a convenient scapegoat. That court records demonstrate that Mr. Okanda and Mr. Were consistently represented the Applicant across all proceedings in these matters. 17 It is further stated that while a layperson might be excused for procedural oversights, it is inexplicable how a full department of legal counsel in the County Attorney's office could repeatedly overlook statutory timelines and the requirement for leave. 18 That the Applicant being a public office and a constitutional entity with perpetual succession, when a public officer is on leave, the office continues with its operations without a halt. 19 It is asserted that the Applicant’s continuous disregard for procedure causes severe prejudice and financial hardship to the Respondent, who remains subjected to endless piecemeal litigation without compensation in costs. 20 That the Application dated 14th May, 2026 is a clear abuse of court process, devoid of merit and unsupported by any justifiable legal ground. The court is invited to dismiss the application in its entirety with certified costs to the Respondent. **SUBMISSIONS** 21 The application was canvassed by way of written submissions. The Respondents’ submissions are dated 15th July, 2026. Though filed out of time the court has considered them. The applicant did not file submissions. The court will therefore proceed on the basis of their supporting affidavit. **Respondent Submissions** 22 The submissions rehash the depositions in the replying affidavit. The Respondent contends that the present Motion is a clear abuse of the court process characterized by inordinate delay which has caused them immense prejudice and forced them to incur unnecessary costs. 23 The Respondent submits that the application is strictly *res judicata* and this Court is *functus officio* as the issue of leave to file the Reference out of time was conclusively decided in the previous ruling of 8th May, 2026, and should have been properly addressed in the earlier files MISC.*E025 of 2025* or MISC.*E030 of 2025*. Setting out the facts and history of the matter, the court is referred to section 7 of the Civil Procedure Rules and **John Florence Maritime Services Limited & Another Vs. Cabinet Secretary Transport & Infrastructure & 3 Others (2021) eKLR.** to urge that all the principles for a finding of res judicata have been met. 24 It is urged that the court is also functus officio. Reliance is placed on the Supreme Court case in **Raila Odinga & 2 Others Vs. IEBC & 3 Others (2013) eKLR** and it is asserted that the court has no further business with the issues raised in the application. 25 The delay in bringing the application is termed inordinate and no valid reasons have been given. That extension of time is not right of a party. It is an equitable remedy. Reliance is placed on **George Kagima Kariuki & 2 Others Vs George M. Gichimu & 2 Others (2014) eKLR. Ahmednassir Abdikadir & Co. Advocates Vs National Bank of Kenya Ltd (2) (2006) 1EA 5** among others. 26 On prejudice suffered by the Respondent it is submitted that the Respondent has suffered immense prejudice and incurred unnecessary costs by the Applicant's abuse of court process. That the Application herein is an affront to justice and derogation of the Respondent's entitlements under Section 51 of the Advocates Act, the Respondent having made an Application dated 29th September, 2025 for he adoption of the Certificate of Costs issued in MISC/E025/25 as a judgment when the certificate of costs is neither set aside nor altered even as of now. Section 51(2) of the Advocates Act says: 27 It is contended that there is actually nothing to oppose in an Application brought under Section 51 of the Advocates Act except by evidence of a set aside or varied certificate of costs, that is not there as at now, that the Applicant is attempting to get in futility, by convoluted and irregular references and yet still the Applicant purported to file submissions allegedly opposing the Respondent's Application MISC/E025/25 for adoption of the Certificate of Costs as a Judgment even without filing any response to it. 28 That the Applicant cannot be allowed to thrive in its ignorance of the law, indolence and want of diligence, at the expense of the Respondent's justice and expenses in costs of defending the very many causes. 29 It is urged that no person is above the law and the Constitution of Kenya guarantees equality before the law, equal protection and equal benefit of the law under Article 27 of the Constitution. The law cannot be applied and interpreted to accommodate impunity. 30 That the Application is a clear abuse of court process, devoid of merit and unsupported by any justifiable legal ground. That in the premises, the Application ought to be dismissed in its entirety with certified costs to the Respondent. **ANALYSIS AND DETERMINATION** **PRELIMINARY OBJECTION** 31 Is the preliminary objection merited? The Respondents argue that the application is barred under the doctrine of *res judicata* and that the court became functus officio upon delivery of its ruling dated 8th May, 2026. 32 The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides that: **“*No* court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”** **33** The **Black’s law Dictionary 10th Edition defines “*res judicata”* as** ***“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”*** 34 The threshold to be met for a suit to be termed as being res judicata was enunciated by the Court of Appeal in the case of **The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR),** and which spells out the factors to be considered as follows; **For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;** ***a)* The suit or issue was directly and substantially in issue in the former suit.** **b) That former suit was between the same parties or parties under whom they or any of them claim.** **c) Those parties were litigating under the same title.** **d) The issue was heard and finally determined in the former suit.** **e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.** 35 In the case of **John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR** the essence of the doctrine of res judicata was expounded as follows: 1. **“*The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.”*** 36 It is undisputed that the parties and the underlying subject taxation are identical and or the same to those in *Misc. Application No. E030 of 2025*. The subject is the grant of leave to file reference out of time against the taxation. However in my view the critical question is whether the ruling of 8th May, 2026 constituted a final ruling on the merits of the application for leave to file reference against the taxation herein. 37 The record shows that *Misc. Application No. E030 of 2025* was struck out solely for want of leave to file the Reference out of time. The applicant then had not obtained the leave of the court to file the reference. It was a dismissal on a procedural technicality not an adjudication of the substance or merits of the application for leave. A dismissal for want of leave does not shut the door of justice permanently rather it indicates that the gate must be opened using the correct key which is the current application for leave. 38 It has been pointed that the application is a disguised appeal and an invitation of this court to sit as an appellate court on its decision. This court respectfully disagrees with this point for the reason that as long as the earlier suit was not heard on its merits then the issue of an appeal is misplaced. 39 The preliminary objection in view of the above cannot be sustained. **THE APPLICATION DATED 14TH MAY, 2026.** 40 I must now embark on the merits of the present application dated 14/5/2026 supported by the affidavit sworn by Victor O. Were sworn on 14/5/2026. Should the orders sought in the application issue? 41 It has been urged that this application ought to have been filed first under the pre-existing matter being Misc. E025/2025 and not in the current fresh miscellaneous application. However this court must lean towards rendering substantive justice and ensure both parties are heard in the interests of justice. Moreover this does not go to the root of the matter. This is the spirit of Article 159(2)(d) of the Constitution of Kenya 2010. 42 In the case of **Lucy Bosire Vs. Kehancha Div. Land Dispute Tribunal & 2 Others** (2013) KEHC 681 KLR Odunga J held as follows;- ***It must be recognized that blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on its merit. See Philip Keipto Chemwolo & Another Vs Augustine Kubembe (1986) KLR 492;(1982 -88)1 KAR 1036 at 1042*** 43 The court is also emboldened by the case of ***Belinda Murai & 9 Others V Amos Wainaina [1979] KECA 25 (KLR)*** where the Court of Appeal stated thus: - ***“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule. It is also not unknown for a final court of appeal to reverse itself when wisdom accumulated over the course of the years since the decision was delivered so requires. It is all done in the interests of justice.’*** 44 The application is brought under Paragraph 11(4) of the Advocates Remuneration Order; Sections IA, IB & 3A of the Civil Procedure Act, Order 50 Rule 6 and Order 51 Rule I of the Civil Procedure Rules, and all other enabling provisions of law. 45 Paragraph 11(4) of the Advocates Remuneration Order contemplates those applications for enlargement of time be brought by way of a Chamber Summons rather than a Notice of Motion. However, this Court is mandated under the progressive regime of Article 159(2)(d) of the Constitution of Kenya to administer justice without undue regard to procedural technicalities. This court chooses to deal with the substance of the matter. 46 Paragraph 11(4) of the Advocates Remuneration Order; provides for the process to be followed where a party desires to file an objection to a decision of taxing master and appeal thereof to the Court of Appeal and reads; - Objection To Decision On Taxation And Appeal To Court Of Appeal ***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.*** ***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.*** ***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.*** ***Appeal.*** ***The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for 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.*** 47 The power to enlarge time is therefore discretionary. However discretion must be exercise judiciously and will also depend on the circumstances of each case meaning it is on a case to case basis. 48 The reasons rendered by the Applicant for failing to file the reference application out of time against the decision of the Taxing Officer as deponed by Mr. Were is that the Applicant could not file a reference within the stipulated time due to the fact that Counsel allocated the matter one Ms. Rose Rowena Ndeda proceeded on a study leave at the Kenya Institute of Public Policy research and analysis and later on resigned from the service of the County Government of Siaya without proper handover to enable for timely filing of the reference. 49 The above depositions were impugned for the reasons the same are untruthful and an afterthought. The respondents contend that the applicant is constitutional entity with perpetual succession and its functions do not move with an individual owner when on leave. Further that the said Ms. Rowena will be condemned unheard yet mentioned adversely and being used as a scape goat. That all along it is the County that has been handling the matter. That based on the LSK records Ms. Rowena was still an active advocate working under the County Government of Siaya as at May 2026. 50 The above depositions are grave and very disturbing to this court to the extent that prima facie there seems to be untruthfulness on the part of Mr. Were who is shown to have been aware and even signed the objection letter dated 13/8/2025. The court has taken this allegations very seriously and which cannot be condoned by the court. However this court is cognizant of the fact in the absence of a change of address I would be cautious. Similarly, this court will not condemn Ms. Rowena unheard. 51 But in the meantime I must still look at the substantive justice in this matter. In as much as many blunders have been committed by the Counsels for the Respondents it would not be fair for this court to visit the mistakes of the Counsels upon the County Government of Siaya as seen in the authorities cited herein. As rightly pointed by the Respondents this is a public office and they further alluded that multiplicity of actions are at the expense of public money. It is on the same lense that this court has also looked at the justification to allow a chance for the reference to be decided on its own merits a grievance having been raised rather than burying it. 52 At this juncture I will not delve into the depositions concerning the existence of the ruling of this court in a related matter for this will be delving into the merits of the reference. 53 I will also look at the period of delay in the filing of the reference as being not inordinate considering the date of the earlier matter that had been filed herein and dismissed. The rest of the delay are attributed to period spent on directions and the earlier ruling. 54 I think leaning on the constitutional quest for substantive justice I will grant leave for the reference to be filed out of time. The ends of justice will be far better served by allowing the intended Reference to be heard and determined on its merits. Should the orders of stay of execution issue? 55 The Applicant has further sought for an order for a stay of execution of the Certificate of Taxation and, or consequential orders pending the hearing and determination of the intended Reference. 56 It has been stated in the grounds to the application that the applicant stands to suffer substantial loss and prejudice as the right to challenge the decision of the taxing officer will be defeated. 57 The Certificate of Taxation the subject of the reference is the same in L. Misc E025 of 2025 Olendo Orare & Samba Advocates Vs. County Government of Siaya . In the said cause the Respondent herein sought for the adoption of the Certificate of Costs herein among other orders. 58 This court has delivered its ruling today the 27/7/2027 in the said matter in the following terms;- **The application dated 29th September 2025 is hereby allowed as prayed as follows; -** 1. ***THAT the Certificate of Taxation issued herein in respect of the taxation order made on 08.08.2025 for the sum of Kenya Shillings One Hundred and Ninety-Eight Million, Four Hundred and Seventy-Six Thousand, Nine Hundred and Fifty-Six Only (Kshs. 198,476, 956/=] be adopted as judgment and decree of this Honourable Court, together with interest thereon at 14% per annum from 21.03.2025, being one month from the date of presentation of the Applicant's demand to settle professional fees to the Respondent until payment in full.*** 2. ***THAT the costs of this application be borne by the Client/Respondent.*** 59 The import of the above is that there is now a judgement and decree of the court. 60 Having rendered myself on the issue the question that lingers is whether the orders of stay should issue in the circumstances. I must however point that the fact that a court adopts the certificate of Taxation does not mean it agrees with it the same can still be set aside but through the separate process of review or reference. The adoption to me is an administrative process since execution cannot happen in the absence of a judgment and a decree on the certificate of costs as sought. 61 The actual execution of the decree thereafter is a different process yet again and the law provides mechanisms for stay of such process outside the confines of Section 51 of the Advocates Act. The leave having been granted and the reference having been adopted as duly filed for purposes of execution of the decree as duly filed it then becomes synonymous with an appeal. 62 Having equated the Reference to an appeal then the provisions of Order 42 Rule 6 of the Civil Procedure Rules must kick in though I have noted the applicants have only invoked sections 1A, 1B & 3A of the Civil Procedure Act. Order 42 reads; - 63 The principles guiding the grant of a stay of execution pending appeal are laid out under Order 42 rule 6(2) of the **Civil Procedure Rules** which provide; - ***“No order for stay of execution shall be made under subrule (1) unless-*** ***(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and*** ***(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.*** 64 It has already been noted that the applicant states they stand to suffer substantial loss and prejudice as the right to challenge the decision of the taxing officer will be defeated. It is trite that substantial loss is at the very core of an application for stay of execution. Further that the court must guard against rendering the reference nugatory. Each case is decided on its own facts and merits. The prejudice suffered by the applicant can be compensated by way costs. This court is inclined to allow the order for stay of execution to avoid the reference being rendered an academic exercise and therefore nugatory. This court is persuaded that should the execution proceed substantial loss will be suffered. 65 I have also considered the issue of security but the view of this court is that counties are a going concern and they will always be there. 66 The following orders therefore issue to dispose of the Preliminary Objection and the application herein 1. The Respondents Preliminary Objection dated 17th June 2026 is hereby dismissed with no orders as to costs. 2. The Application dated 14th May, 2026 is hereby allowed. 3. The Applicant is granted leave to file and serve its Reference against the taxation ruling of the Taxing Master delivered on 8th August, 2025 out of time. 4. The annexed Reference be deemed as duly filed and upon payment of the requisite fees. 5. An order of stay of execution of the decree as adopted pursuant to the Certificate of Taxation and/or any consequential orders hereby issues pending the hearing and determination of the Reference. 6. The refence to be heard on priority basis. 7. The costs of the application are awarded to the Respondents. It is so ordered **Dated at Siaya this 27th Day of JULY 2026** **HON. JUSTICE A. E. DENA** **JUDGE** **27/7 /2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:** Mr. Were for the Applicant Mr. Olendo for the Respondent Court assistant: Abiud Wekesa