https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4217

Godad v Ahmed & 6 others (Environment and Land Case 4 of 2019) [2026] KEELC 4217 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4217 (KLR) Republic of Kenya In the Environment and Land Court at Garissa Environment and Land Case 4 of 2019 RO Omondi, J July 9, 2026 Between Dubey Mohamed Godad Plaintiff and Mohamed Omar Ahmed 1st Defendant Ahmed G. Gabow 2nd Defendant Kusow Hassan Khalib 3rd Defendant Ibrahim Mohamed Abdullahi 4th Defendant Noor Kasay 5th Defendant Aden Mohamed Mohamud 6th Defendant Nasib Farm Limited 7th Defendant Ruling A. Individual 1.The Plaintiff/Applicant’s Chamber Summons dated 15th January 2026 before this court seeks to extend the time to object to the Taxing Officer's decision of 19th November 2024 and to obtain leave to file a late reference. 2.The application is supported by the affidavit of Paul Amuga, learned counsel for the Plaintiff. It is opposed by the Defendants/Respondents through a replying affidavit sworn on 26th February 2026 and written submissions dated 26th February 2026. 3.The Plaintiff’s case is that although the ruling of the Taxing Officer bears the date 19th November 2024, it was not delivered on the appointed date and was only subsequently uploaded onto the Court Tracking System (CTS) on 19th September 2025, without notice to the parties. The Plaintiff’s advocates state that they became aware of the ruling on 14th January 2026 and filed the present application the following day. 4.The Defendants oppose the application principally on the ground that the Plaintiff has failed to explain the entire period of delay. They contend that even after the ruling became available on CTS on 19th September 2025, the Plaintiff took no action for approximately four months. In their view, that period demonstrates a lack of diligence and cannot be excused merely by the absence of formal notification from the Court. The Defendants also fault the Plaintiff for failing to annex a draft reference or notice of objection. B. The Plaintiff’s case 5.The Plaintiff contends that the Court has express power under paragraph 11(4) of the Advocates (Remuneration) Order to enlarge the time prescribed for taking any step under paragraph 11, even where that time has already expired. 6.According to the Plaintiff, the ruling was initially scheduled for delivery on 1st November 2024, but was not delivered because that day had been gazetted as a public holiday. The Plaintiff states that the ruling was thereafter uploaded onto CTS on 19th September 2025 without notice to the parties. 7.It is submitted that it would not have been possible to object to a ruling whose outcome and contents were unknown to the Plaintiff. The Plaintiff therefore urges the Court not to compute the delay from 19th November 2024, being the date borne by the ruling, but to take into account the date when the ruling actually became available to the parties. 8.The Plaintiff relies, among other authorities, on Republic v Speaker of Nairobi City County Assembly & another ex parte Evans Kidero [2017] eKLR, Mwangi Keng’ara & Co. Advocates v Invesco Assurance Company Limited [2023] eKLR and Imarika Sacco v Katana [2023] eKLR. 9.The Plaintiff further submits that the intended reference is arguable because it seeks to challenge the failure to award getting-up fees and the award of Kshs. 500,000 as instruction fees, which the Plaintiff considers so low as to disclose an error of principle. It is also contended that the Defendants will suffer no prejudice because the taxed costs remain unpaid. C. The Defendants’ case 10.The Defendants contend that the discretion to enlarge time is judicial and may only be exercised upon a satisfactory explanation for the delay. 11.They acknowledge that the ruling was uploaded onto CTS on 19th September 2025 but contend that the Plaintiff has offered no satisfactory explanation why his advocates failed to discover it until 14th January 2026. 12.The Defendants argue that CTS is accessible to litigants and advocates and that the Plaintiff’s advocates were under a duty to monitor the progress of a taxation they had themselves instituted. In their view, failure to check the status of the matter for approximately four months after the ruling became available amounts to culpable negligence and not excusable inadvertence. 13.The Defendants further submit that the application is defective because no draft reference or notice of objection has been annexed. They contend that bare assertions concerning getting-up fees and instruction fees are insufficient to demonstrate that the intended reference is arguable. 14.They also assert prejudice arising from prolonged uncertainty, further litigation expenses, and delayed finality of the taxation proceedings. They therefore urge the Court to dismiss the application with costs. 15.Relying on the decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Defendants set out the conditions for extension of time, I shall return to this authority later in this ruling. 16.Further, they sought to rely on the case of Randolph M. Tindika t/a Tindika & Company Advocates v Jane Marete [2017] eKLR for the proposition that the principles enunciated in Nicholas Salat above are directly applicable to the taxation of references. D. Issues for determination 15.Having considered the application, the affidavits and the rival submissions, the following two issues, in my view, are apt for determination:i.whether the Plaintiff has satisfactorily explained the delay in commencing the objection and reference proceedings;ii.whether the Court should exercise its discretion under paragraph 11(4) of the Advocates (Remuneration) Order in favor of the Plaintiff. E. Analysis and determination The applicable principles 16.Paragraph 11(1) of the Advocates (Remuneration) Order requires a party who objects to the decision of a Taxing Officer, within fourteen days after the decision, to give notice in writing to the Taxing Officer specifying the items of taxation to which objection is taken. 17.Paragraph 11(4) nevertheless confers upon the Court discretion to enlarge the time prescribed under paragraphs 11(1) and (2), even after the prescribed period has expired. 18.The Court therefore has jurisdiction to entertain the application. The issue is whether the Plaintiff has presented to the Court a sufficient basis for the exercise of that discretion in its favor. 19.The starting point is the decision of the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR. The Court laid down seven governing principles for extension of time, including:i.Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;ii.A party who sought an extension of time had the burden of laying a basis for it to the satisfaction of the court;iii.Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;iv.Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;v.Whether there would be any prejudice suffered by the respondents if the extension was granted;vi.Whether the application had been brought without undue delay; and;vii.Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time. 20.The last principle is not applicable in the present case. Of particular relevance to the present application is the Supreme Court’s emphasis that:Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time lapse. 21.The same approach was adopted by the Supreme Court in County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR, where the Court held that a party seeking extension of time must explain the whole period of delay to the satisfaction of the Court. It is therefore insufficient for an applicant merely to identify the date on which action was eventually taken. The Court must be placed in a position to understand why the prescribed step was not taken throughout the material period. 22.The principle that the entire period of delay must be satisfactorily accounted for was reiterated by the Supreme Court in Mombasa County Government v Kenya Ferry Services & another [2019] eKLR. The Court stated that whenever there is delay, the party responsible bears the primary obligation of explaining it to the satisfaction of the Court. 23.These principles apply with equal force to an application under paragraph 11(4) of the Advocates (Remuneration) Order. Although the provision confers a wide discretion, it does not establish an automatic entitlement to extension. The applicant must demonstrate sufficient cause for failure to comply with the prescribed period. 24.In Republic v Speaker of Nairobi City County Assembly & another ex parte Evans Kidero [2017] eKLR, upon which the Plaintiff himself relies, the Court recognized the discretion to enlarge time but emphasized that the Court must consider the circumstances of the delay and whether justice requires its intervention. The decision does not stand for the proposition that absence of prejudice alone entitles an applicant to an extension. 25.The considerations relevant to the exercise of discretion therefore include the length of the delay; the explanation offered for it; the conduct and diligence of the applicant; the arguability of the intended reference; the prejudice to the opposite party; and the overall interests of justice. These factors must be considered cumulatively, although the explanation for the delay remains central. i. Whether the Plaintiff has Satisfactorily Explained the Delay? 26.The chronology in the present matter is not seriously disputed. The Taxing Officer’s ruling bears the date 19th November 2024 but was uploaded onto CTS on 19th September 2025. The present application was filed on 15th January 2026. 27.There is no evidence that the Plaintiff or his advocates were present when the ruling was delivered, that they were notified of its delivery, or that the ruling was available on CTS before 19th September 2025. 28.I am therefore prepared, in the Plaintiff’s favour, not to attribute to him the entire period between 19th November 2024 and 19th September 2025. A party cannot reasonably be expected to formulate an objection to a decision whose contents are not available to him. 29.That, however, does not resolve the application. The critical period is between 19th September 2025, when the ruling became available on CTS, and 14th January 2026, when the Plaintiff’s advocates say they discovered it. The period in question is approximately four months. 30.The Plaintiff has not placed before the Court evidence of any step taken during that period to ascertain the status of the taxation. 31.There is no correspondence addressed to the registry seeking the ruling. There is no letter to the Taxing Officer. There is no evidence of a telephone inquiry, physical attendance at the registry, or periodic checking of CTS. There is equally no explanation of any impediment that prevented the Plaintiff or his advocates from undertaking those steps. 32.The explanation advanced is essentially that no notification was issued when the ruling was uploaded. 33.The Court accepts that parties ought ordinarily to be notified of the delivery or availability of judicial decisions. Failure to give such notice is a relevant consideration. It is not, however, a complete answer to an application for extension of time where the applicant does not demonstrate any diligence on his own part. 34.The Supreme Court’s decision in County Executive of Kisumu is instructive. The obligation is not merely to explain why the applicant did not know of the decision. The applicant must satisfactorily account for the entire period of inactivity. 35.In the present case, the Plaintiff’s explanation leaves an evidential gap of approximately four months. The Court is not told what, if anything, was done between September 2025 and January 2026 to ascertain whether the ruling had been delivered. 36.The fact that the application was filed one day after the Plaintiff’s advocates eventually discovered the ruling does not cure that deficiency. It demonstrates diligence after discovery; The Plaintiff locked the door after the horse had bolted. It does not explain the preceding failure to discover a ruling that had been available on the Court’s electronic system for approximately four months. 37.The distinction is important. As the Supreme Court stated in Nicholas Salat, a party seeking an equitable enlargement of time must lay a basis showing that he was not at fault in allowing time to lapse. The Plaintiff has not discharged that burden. 38.The Plaintiff’s submissions contend that the effective delay of four months has been sufficiently explained. With respect, the assertion that the ruling was not discovered is not itself an explanation for the failure to discover it. The Court requires evidence of reasonable steps taken during the material period. None has been provided. The Plaintiff’s own submissions confirm that the ruling had been on CTS since 19th September 2025 but was not discovered until January 2026. 39.The Defendants specifically raised this omission. They deposed that the Plaintiff’s advocates failed to monitor CTS for more than four months and characterized that conduct as culpable negligence rather than excusable oversight. As I have already indicated. ii. Whether the Court Should Exercise Its Discretion in Favor of the Plaintiff? 41.A party represented by counsel is not required to monitor every procedural development on a daily basis. The law nevertheless expects reasonable vigilance in the conduct of litigation. 42.In Kimetto v Tuwan Farm Limited & 2 others (Environment and Land Case E011 of 2025) [2026] KEELC 2806 (KLR), the Court emphasized that a litigant has a duty to pursue his case and cannot remain in slumber indefinitely. The principle is particularly pertinent where the procedural step awaited concerns proceedings initiated for that party’s own benefit. 43.The present taxation arose from the Plaintiff’s own party-and-party bill of costs. The Plaintiff was the party awaiting the fruits of that taxation. It was therefore reasonable to expect some follow-up concerning the ruling. 44.The Court does not hold that absence of formal notification is irrelevant. It explains why the Plaintiff may not have known of the ruling immediately upon its upload. What it does not explain is the complete absence of inquiry or follow-up for approximately four months thereafter. 45.Judicial discretion cannot be exercised upon sympathy or conjecture. In Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLR, the Court reiterated that a party seeking an extension must provide a satisfactory explanation and that unexplained or inadequately explained delay militates against the exercise of discretion. 46.Similarly, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. Nai. 255 of 1997 unreported, cited with approval in Mbayi v Kibos & Allied Industries Limited & another (Environment and Land Civil Miscellaneous Application E023 of 2022) [2023] KEELRC 486 (KLR), the Court of Appeal identified the length of delay, the reason for the delay, the possible chances of success, and prejudice as relevant considerations. The reason for delay is therefore not a peripheral matter; it is one of the central considerations informing the exercise of discretion. 47.On the facts before me, the Plaintiff has not demonstrated the degree of vigilance expected of a party seeking an equitable indulgence. 48.The Plaintiff states that the intended reference will challenge the alleged failure to award getting-up fees and the assessment of instruction fees at Kshs. 500,000. 48.The Defendants point out that no draft reference or notice of objection was annexed. 49.I do not consider the absence of a draft reference, by itself, fatal. Paragraph 11(4) does not make annexure of a draft reference a jurisdictional requirement. 50.The Court is also not called upon at this stage to determine the merits of the proposed reference. Doing so would pre-empt proceedings that are not yet before the Court. 51.I am prepared to proceed on the assumption that the proposed challenge is not frivolous. That consideration, however, cannot substitute for a satisfactory explanation of delay. 52.In Nicholas Salat, the Supreme Court made clear that the factors relevant to extension of time are to be considered on a case-by-case basis. An arguable intended challenge does not confer an automatic right to extension. Otherwise, procedural timelines would have little practical significance. 53.The Plaintiff submits that the Defendants will suffer no prejudice because the taxed costs have not been paid. The Defendants rely on prolonged uncertainty, further expense, and the need for finality. 54.I accept that the Defendants have not demonstrated prejudice that is incapable of compensation by costs. That factor weighs to some extent in favour of the Plaintiff. It is not, however, decisive. 55.The absence of substantial prejudice cannot relieve an applicant of the primary obligation to explain his own delay. The principles stated by the Supreme Court in Nicholas Salat, County Executive of Kisumu and Mombasa County Government require the Court to consider the applicant’s conduct as an independent and important factor. 56.Procedural timelines serve the public interest in certainty, expedition, and finality. Paragraph 11(4) allows departure from those timelines where sufficient cause is demonstrated; it does not render compliance optional. 57.The Court has already taken the most favorable view available to the Plaintiff by excluding from adverse consideration the period before the ruling was uploaded onto CTS. What remains is an unexplained period of approximately four months. 58.To extend time in those circumstances would mean that an applicant may remain entirely passive after a decision becomes available and obtain enlargement merely by asserting that no notification was received. That would transfer the entire responsibility for the conduct of litigation from the parties to the Court and establish a distasteful precedent. 59.That is not the law. Litigation is a shared process. The Court has obligations to the parties, but parties also bear responsibility for pursuing matters they have placed before the Court. 60.The equitable nature of the discretion under paragraph 11(4) is decisive. The Plaintiff seeks the Court’s indulgence but has not demonstrated the diligence necessary to attract it. 61.I accordingly find that the Plaintiff has failed to satisfactorily explain the whole period of delay and has therefore not established sufficient cause for enlargement of time. F. Disposition 64.The Chamber Summons dated 15th January 2026 is accordingly without merit. I make the following orders:i.The Plaintiff’s Chamber Summons dated 15th January 2026 seeking enlargement of time to object to the decision of the Taxing Officer dated 19th November 2024 and to file a reference therefrom out of time is hereby dismissed.ii.The Plaintiff shall bear the Defendants’ costs of the application.iii.The file is closed.It is so ordered. DATED, SIGNED AND DELIVERED AT GARISSA THIS 9TH DAY OF JULY 2026.DR. OMONDI R. OWINO, FCIArbELC JUDGEDelivered virtually on the Teams PlatformIn the presence of:Mr Ahomo for the ApplicantMs Ndegwa for the RespondentMr Dabar Mohamed Court Assistant