https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11536

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL & TAX DIVISION** **HCCOMMMISC. E882 OF 2024** **ELKINGTON & ASSOCIATES.....................................................................ADVOCATE** **VERSUS** **HITESH SURESH LAKHIANI......................................................................1ST CLIENT** **HARISH SURESH LAKHIANI...................................................................2ND CLIENT** **RULING** 1. The clients filed the chamber summons dated 23.6.2025 seeking enlargement of time to file a reference against the taxation ruling by **Hon. V. M. Mochache** delivered on 2.5.2024 in respect of the advocate’s bill of costs dated 31.10.2024. 2. The application is supported by the affidavit sworn by the 1st client, **Mr. Hitesh** on 18.6.2025 and written submissions dated 18.2.2025. 3. The gist of the application is that the applicants wish to file a reference as they are unhappy with the taxation award of Kshs. 4,260,635.20 but the deadline for filing a reference has passed. 4. The applicant’s explanation is that following the delivery of the ruling, they were outside jurisdiction in Dubai and India and had limited access to communication which prevented them from obtaining legal advice regarding the statutory timelines. 5. The applicants argue that the court has jurisdiction to enlarge time and that the reference has overwhelming chances of success. They highlighted some of the issues including the rejection of a mutually agreed legal fee communicated, erroneous valuation of the subject matter and disproportionate award of instruction fees. 6. They contend that the advocate/ respondent shall not be prejudiced if the time is enlarged. 7. The applicants relied on **Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 Others (Sup. Ct Application No. 16 of 2014) [2014] eKLR, Kenya Commercial Bank Limited v Nicholas Ombija [2009] eKLR and Gori, Ombongi & Company Advocates v Mary Wangechi Kamara [2022] eKLR.** **Response** 1. The respondent opposed the application through a replying affidavit sworn by **Paul Elkington** on 22.9.2026 and written submissions dated 24.2.2026. 2. The respondent contended that the application is frivolous and vexatious with the intention of filing a stale taxation reference. 3. The respondent highlighted the requirement under para. 11 (1) of the Advocates Remuneration Order that an objector ought to file a notice of objection within 14 days of the taxation ruling and thereafter within 14 days for receiving the reasons. He added that where there are no reasons, the objector ought to file their reference straight away. 4. The respondent submitted that the time for filing a reference has since passed, the deadline fell on 16.5.2025 following the delivery of the ruling on 2.5.2025. 5. The respondent pointed out that it already applied for a certificate of taxation which was issued on 18.6.2025. This was after it filed and withdrew its own reference application dated 5.5.2025. 6. The respondent posed that maybe it was its letter of 18.6.2025 communicating its withdrawal of its reference that triggered the applicants into action. 7. The respondent contended that the explanation by the applicants that they could not file their reference in time because they were away in India and Dubai is an excuse, unsupported by evidence and not a justification for their inaction especially in a technological era. 8. The respondent termed the application a red herring and mala fides and urged the court to dismiss it with costs. 9. The respondent relied on several authorities, key among them **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 and Mombasa County Government v Kenya Ferry Services & another [2019] eKLR.** **Analysis and Determination** 1. The issue is whether the time for filing the reference should be enlarged. 2. The Supreme Court in **Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 Others [supra]** stated as follows: - ***“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 taxation ruling was delivered on 2.5.2025. The deadline for filing a reference fell on 16.5.2025 2. The application for enlargement is dated 23.6.2025. 3. The delay of a month and 7 days may seem not to be inordinate. However, ‘**A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour’. Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR** 4. The explanation given for the delay is purported limited access to communication because the applicants were outside the jurisdiction in Dubai. To say the least, this is not a plausible and satisfactory explanation in this age of advanced information and technology communication and connection. The applicants were merely indolent suitors; a conduct that will not be aided by law or equity. 5. In these circumstances, prejudice upon the respondent is apparent. 6. Therefore, I am not satisfied that the applicants have laid a basis for enlargement of time to file the reference. **Disposal** 1. Accordingly, the application dated 23.6.2025 is dismissed with costs. **Dated, signed and delivered at Nairobi through Microsoft Teams online application this 16th day of July, 2026** **------------** **F. Gikonyo M** **Judge** **In the presence of: -** Kipchumba for Elkington for respondent Ndungu for Wacira for Applicant CA- Ivan/Aggrey