https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9720

Muthoka v Munguti & another (Family Miscellaneous Civil Case E013 of 2025) [2026] KEHC 9720 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9720 (KLR) Republic of Kenya In the High Court at Makueni Family Miscellaneous Civil Case E013 of 2025 JN Onyiego, J July 3, 2026 IN THE MATTER OF LEAVE TO FILE REFERENCE ARISING FROM OUTCOME ARISING FROM KILUNGU SRMS’S SUCCESSION CAUSE NO.27OF 2016 Between Joseph Makusa Muthoka Applicant and dorcus Mbele Munguti 1st Respondent Laban Masai 2nd Respondent Ruling 1.Vide a Notice of Motion dated 25th July 2025, filed pursuant to Paragraph 11(4) of the Advocates Remuneration Order, Section 47 of the Law of Succession Act and Article 159 of the Constitution, the applicant herein sought orders as follows:-a.Spent.b.That pending the hearing of this application, the court be pleased to order release of the applicant from civil jail on personal bond or on such terms as it may deem fit.c.That the court be pleased to grant the applicant leave to file a reference against the Taxation of the Bill of Costs dated 31-10-2018 and taxed on 20-12-2018 in Kilungu SRM’ Court Succession Cause No.27 of 2016 in terms of the Chamber Summons filed herewith.d.That the costs of this application be provided for. 2.The application is anchored on the particulars set out on the face of it and further amplified by the averments contained in the affidavit in support sworn on 5-7-2025 by Joseph Makusa Muthoka in which he averred that he was on 4-7-2025 committed to civil jail after failing to honour payment of costs assessed at Kshs. 1,518,425 being the amount arising from taxation of the Bill of Costs in Kilungu Succession cause No.27 of 2016. 3.That after taxation, he filed a Notice of Objection dated 3.1.2019 seeking reasons for the decision but the court kept quiet to date. That as a consequence, he could not file a reference as required. That the succession process adopted in taxing the amount was irregular and unprocedural hence a nullity. 4.It was further averred that the Bill of Costs as drawn was far beyond the jurisdiction of the court. He deposed that the delay to file reference was occasioned by the taxing court. 5.In response, the respondent filed a replying affidavit sworn by Laban Nduva Maasai on his behalf and that of the co-respondent thus urging that the application is bad in law and lacking in legal basis and whose intention is to forestall execution process. That the objection was heard and dismissed on 11.10.2018. He deposed that the court did give reasons on its ruling dated 27-11-2019. It was also deposed that jurisdiction cannot be raised after hearing the matter fully to its finality with the participation of all parties. That the application seeking stay not to be committed to civil jail was filed and determined by the High Court in P&A 29 of 2018 vide its ruling dated 12-6-2019. 6.I have considered the application herein and the response thereof. The issues that germinate for determination are; whether the applicant has met the threshold for leave to file reference against the Taxation Certificate for Bill of Costs; whether this court can issue orders for release of the applicant from civil jail and whether the court had jurisdiction to hear the matter. 7.During the hearing, parties orally submitted basically adopting their respective affidavits. 8.To start with, committal to civil jail is normally for a maximum period of six months. Having been committed to civil jail on 4-7-25, the same must have lapsed or served hence this prayer is overtaken by events. 9.As to jurisdiction, the Bill of Costs was for a sum of 2,735,975 which was finally taxed at 1,510,925. The monetary jurisdiction of an SRM is 7.5 million hence the court had the requisite monetary jurisdiction. To mention the amount of 200M as the value of the subject matter for purposes of taxation is ridiculous. A Deputy Registrar executing the role of Taxing Master cannot be bound by the value of the suit as he is not hearing the main suit. This is more of an administrative cum judicial duty hence jurisdiction does not a rise. 10.As to leave to file reference, the same is clearly captured under Paragraph 11 (4) of the Advocates Remuneration Order 1962 which provides that once a party is dissatisfied with the decision of the Taxing Officer, he is supposed to apply to the Judge by way of Chamber Summons within 14 days stating reasons for their objection. In the instant case, it has taken over 7 years to institute an application to seek leave to file a reference. Surely, litigation must come to an end and equity does not come to the aid of the indolent. See Benson Ngugi vs Francis Kabui Civil Appeal No.9 of 1986 and Middle Management Services v Ochieng (Appeal E062 of 2024) [2026] KEELRC 1303 (KLR) (18 May 2026) (Ruling) Where the Court stated as follows;“The respondent's application thus seeks dismissal of the appeal for want of prosecution. Since March 2024, when the appeal was filed, the appellant has done nothing under Rules 12, 13, 15, 16 or 18 of the Court Rules to urge its case.The respondent cannot be punished under the indolence of the appellant.The application dated 24 October 2025 is with merit. The appeal herein is dismissed for want of prosecution. Costs to the respondent”. 11.The Taxing Master having given reasons for her decision on 27-11-2019, the applicant had a duty to challenge the same within 14 days an opportunity he squandered. 12.In Lubulellah &Associates Advocates v N K Limited Brothers (2014)e KLR the Court held that; “once a Taxing Master has taxed the Bill of Costs and issued a Certificate of Costs and there is no reference against its ruling, no other action would be expected from the court save to enter judgment.” 13.In a nutshell, I do not find merit in this application hence dismissed with costs to the respondents. This ruling shall apply to file no. HC family Misc. No.E013 of 2025 as the prayer and the subject matter are the same the orders challenged having emanated from the same primary suit. DATED, SIGNED AND DELIVERED THIS 3RD DAY OF JULY 2026.............................................J.N.ONYIEGOJUDGE