[2021] KEELC 474 (KLR)
The court found that the applicant failed to provide sufficient evidence to support the claim that the delay in filing the reference was due to paternity leave, as no supporting documents were annexed. The court was not convinced that the reasons advanced justified the grant of the orders sought, particularly the...
Source-derived case information.
- Citation
- [2021] KEELC 474 (KLR)
- Parties
- Applicant: Kipyator Kibet & Associates Advocates; Respondent: John Kipkorir Ayabei t/a Naigreen Enterprises
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 99 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Enlargement of Time to File Reference
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Stay of Execution, Enlargement of Time, Taxation of Costs, Reference Against Taxing Officer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipyator Kibet & Associates Advocates
Applicant
John Kipkorir Ayabei t/a Naigreen Enterprises
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Enlargement of Time to File Reference
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the court to grant a stay of execution of the taxed costs.
- 2 Whether the applicant is entitled to enlargement of time to file a reference against the decision of the Taxing Officer.
- 3 Whether the reference filed out of time should be deemed properly filed.
Ratio Decidendi
The court found that the applicant failed to provide sufficient evidence to support the claim that the delay in filing the reference was due to paternity leave, as no supporting documents were annexed. The court was not convinced that the reasons advanced justified the grant of the orders sought, particularly the prayer to deem the reference properly filed out of time. Consequently, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed with no orders as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC MISC APP NO 99 OF 2019
KIPYATOR KIBET & ASSOCIATES ADVOCATES..................................APPLICANT
=VERSUS=
JOHN KIPKORIR AYABEI T/A NAIGREEN ENTERPRISES............RESPONDENT
RULING
1. This is a notice of motion dated 16th February 2019 brought under paragraph 11(5) of the Advocates Remuneration Order 2009, section 3, 3A and 63(e) of the Civil Procedure Act and all other enabling provisions of the law.
2. It seeks orders that:-
1. There be a stay of execution of the costs awarded by the Taxing Officer Senior Deputy Registrar I. N. Barasa in ELC MISC 99 of 2019 pending the hearing and determination of the reference.
2. This honourable court be pleased to enlarge the time within which to file a reference by the applicant against the decision of the Taxing Officer Senior Deputy Registrar I.N. Barasa delivered on the 19th of November 2019.
3. That the Reference filed be deemed as properly filed though filed out of time.
4. The honourable court do issue such other orders/directions as it may deem fit and just.
3. The grounds are on the face of the application and are set out in paragraphs (a) to (f).
4. The application is supported by the affidavit of Kibet Wisdom, Advocate, sworn on the 16th December 2019.
5. The application is opposed. There are grounds of opposition filed by the Respondent dated 14th February 2020.
6. On the 23rd November 2020, the court with the consent of the parties directed that the Application be canvassed by way of written submissions.
7. I have considered the notice of motion and the affidavit in support. I have considered the grounds of opposition and the written submissions. The issue for determination is whether this application is merited.
8. In paragraph (d) of the supporting affidavit the Advocate states that he was not able to file a reference on time as he was paternity leave.
9. I am not convinced that this is sufficient reason to warrant this court to grant the orders as sought in prayer no 3 of the Application. The Advocate has not annexed any documents to confirm the said averment.
10. I find no merit in this application and the same is dismissed with no orders as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 2ND DAY OF DECEMBER 2021.
..........................
L. KOMINGOI
JUDGE
In the presence of:-
Ms Kasewe for Kibet for the Applicant
Mr. P. K. Kibet for the Respondent
Steve - Court Assistant