https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6614

Anindo t/a Igare Auctioneers v National Bank of Kenya Ltd (Miscellaneous Civil Application E123 of 2025) [2026] KEHC 6614 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6614 (KLR) Republic of Kenya In the High Court at Kitale Miscellaneous Civil Application E123 of 2025 RK Limo, J May 18, 2026 Between Margaret Anindo T/A Igare Auctioneers Applicant and National Bank Of Kenya Ltd Respondent Ruling 1.Before me is chamber summons application dated 26/11/2025 brought by Margaret Anindo T/A Igare Auctioneers, the applicant herein seeking the following orders namely;i.Spentii.Spentiii.That this court be pleased to enlarge the time for the applicant to give notice in writing to the Taxing Officer on the items of assessment/taxation objected to by the applicant in respect to the decision dated 13/5/2025 in Kitale CM’s Court Misc. Application No.E020 of 2024. Margaret Anindo T/A Igare Auctioneers –vs- National Bank of Kenya Ltd.iv.That the Taxing Officer in Kitale CM’s Court Misc. Application No.E020 of 2024 Margaret Anindo T/A Igare Auctioneers –vs- National bank of Kenya Limited do forthwith record and forward the reasons for his decision on the items objected to by the applicant.v.That pending the receipt of reasons by the Taxing Officer for the items objected to by the applicant and abiding the filing and determination of a reference, there be a stay of execution of the respondent’s assessed party and party costs in Kitale CM’s Court Misc. Application No.E020 of 2024 Margaret Anindo T/A Igare Auctioneers –vs- National Bank of Kenya Limited.vi.That costs to abide by the determination of the reference. 2.The applicant has listed the following grounds namely;a.That the applicant’s motion for assessment of auctioneer’s charges was dismissed with costs to the respondent.b.That the respondent proceeded to assess costs and a decision was rendered.c.That the applicant was not aware of the decision on the quantum of costs and only became aware on being served with notice to show cause.d.That the applicant is aggrieved by the assessment and seeks for enlargement of time to be supplied with the reasons by the Taxing Officer.e.That the impugned assessment of costs is exorbitant and an error on principle.f.That the applicant has moved this court expeditiously to seek for extension of time.g.That the applicant was prevented from taking action timely by her former counsel who also failed to communicate to her. 3.In her supporting affidavit sworn on 26/11/2025 the applicant has reiterated the above grounds adding that she had sued the respondent herein vide Kitale CM’s Court Misc. Application No.E020 of 2024 to tax/recover auctioneer’s fees. 4.That upon service of the motion to tax costs, the respondent filed a preliminary objection, grounds of opposition and a replying affidavit. 5.That the respondent’s objection was canvassed through written submissions. 6.That the applicant’s application was dismissed vide a ruling dated 18/12/2024 but the applicant was not informed by her advocate. 7.That the respondent filed its party and party costs dated 19/12/2024 asking for sum of Kshs.93,850/- as party and party costs. 8.That the bill was assessed on 13/5/2025 in the sum of Kshs.93,850/- as presented by the respondent. 9.That on 14/11/2025 she was served with a Notice to Show Cause why she should not be committed to civil jail for failing to pay the assessed costs. 10.That the applicant learnt of the assessed costs on 14/12/2025 upon being served with Notice to Show Cause. 11.That she instructed her current advocate to make a follow up and that is how she got to know about the chronology of events leading to the assessment of costs. 12.That she now wishes for extension of time to request the Taxing Officer to give reasons for the assessment of costs as she is aggrieved by assessment of items 1 to 26 on the bill of costs. 13.The applicant gives the following reasons for her grievances;a.That the costs were taxed as presented at Kshs.93,850/-.b.That a Taxing Officer has a duty to assign reasons for the assessment of costs.c.That instructions fee was presented at Kshs.65,000/- while schedule 7A Section 5 of Advocates (Remuneration (Amendment) Order provides for Kshs.3000 as instructions fee. That the assessment was enhanced 22 times.d.The attendance fees (Items 9 to 17) were assessed above the presented amount.e.That disbursement (Items 18 to 24) were not supported with receipts.f.That Item 26 relating to service was assessed beyond prescribed ceiling in Schedule 7A Section 10(a) of Advocates (Remuneration) (Amendment) Order 2014.g.That Items 23 to 25 have no dates which is breach of paragraph 69 of Advocates Remuneration Order 1962. 14.The applicant based on the above grievances seeks for enlargement of time because in her view the assessed costs were way above the prescribed costs and constitute injustice and an anathema to the Constitutional right to access to justice. 15.The respondent in response to the application raised a preliminary objection dated 16/1/2026 contending that the assessment of costs having been undertaken before a subordinate court cannot be challenged by way of Reference under paragraph 11 of Advocates Remuneration Order. According to the respondent a Reference can only be filed with respect to costs taxed before a Taxing Master in the High Court and that any grievances regarding assessment of costs in the lower court can only be done through an appeal. 16.The respondent submits that the application before court is an abuse of court process and this court lacks jurisdiction to grant it. 17.In a further grounds of opposition, the respondent insists that a Reference only lies with respect to taxation of costs in proceedings originating from the High Court. 18.It contends that the applicant has not faulted the actual assessment of costs but only complains of due process. 19.The respondent further contends that there is another application pending in Kitale CM’s Court Misc. Application No.E020 of 2024 between the same parties and faults the applicant for forum searching. 20.It further faults the applicant for unexplained delay contending that the application is an afterthought and unjustified. 21.The respondent has sworn an affidavit through its learned counsel Aggrey Lucas Kidiavai on 16/1/2026 where he has reiterated the above grounds adding that this application has been brought after an inordinate delay of seven months without any satisfactory explanation. 22.This court has considered the application made and the grounds of opposition filed. I will take a look at the written submissions by both sides as I determine the same. 23.The applicant herein in substance seeks extension of time to enable her challenge the decision of the Taxing Officer dated 13/5/2025. The applicant has not invoked any provision relating to extension of time but the same is generally covered by Order 50 Rule 6 of the Civil Procedure Rules which provide;“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”Enlargement of time is a discretionary matter. A party is required to give plausible reasons to persuade a court why time should be enlarged to either appeal or apply for review against a decision he/she is aggrieved about. 24.The applicant in this matter has spent considerable energy and space to show or demonstrate her grievances against the decision of the Taxing Master on the assessment of costs. There is little explanation offered to explain the reasons for delay in challenging the assessment. 25.On the other hand the respondent has given more weight in its opposition on the basis for the challenge and whether the challenge should be by way of appeal rather than through a Reference which I find misplaced because there is no Reference filed. The application seeks to file one and whether the same should be by way of an appeal rather than a Reference is not the main issue here. 26.The court takes the position that a party aggrieved by a decision of a Taxing Master in the lower court has a right to challenge that decision in the High Court and whether he chooses to file an appeal or a Reference is really a matter of semantics because the matter will end at the table of the High Court and under Section 27 of the Civil Procedure Act, this court has jurisdiction to review, or set aside any assessment of costs done by a Taxing Officer in the proceedings either in the lower court or any tribunal or the High Court. 27.This court has considered the respondent’s cited decision in MARU –VS- RUTO (Misc Application No.E001/23 (2025)KEHC 3947 (KLR) and finds that the court also found that it had jurisdiction to review, or revise assessment of party and party costs by the lower court. 28.The respondent’s objection on jurisdiction of this court to revise, review or set aside assessment of party and party costs by a Taxing Officer in Kitale CM Misc. Application NO.E020 of 2024 is misplaced. This court is seized with the requisite jurisdiction as I have found above. 29.The main issue in the application before me is the basis for extension of time to challenge the decision of the Taxing Officer. 30.As correctly pointed out by the respondent, the applicant is a bit scanty on the reasons to explain the delay. The Ruling on the assessment of party and party costs was delivered on 13/5/2025. This application was filed in the last week of November 2025 which was about 7 months after the impugned decision on costs was made. A party seeking an equitable remedy such as extension of time should come to court with clean hands and in good faith. 31.In this matter the applicant has raised no singular reason to explain why she delayed in challenging the decision of the Taxing Officer. Under the Advocates (Remuneration) Order a party aggrieved by the assessment of costs of any item on the bill of costs should within 14 days from the date of the decision give notice to the Taxing Master of the specific item of taxation to which he/she objects and ask for reasons from the Taxing Officer for the assessment and after receipt of such reasons, he/she has 14 days to file a Reference to the High Court to challenge such assessment/taxation. This is what paragraph 11(1) and (2) of the Advocates Remuneration Order provides. 32.Going by the above it is quite obvious that the applicant herein is way out of time because she ought to have taken action to challenge the decision of the Taxing Master by end of May 2025 but only woke up in November 2025 when confronted with execution. While it is true in an application for extension of time a court has wide discretionary powers under the Civil Procedure Act as stipulated under Section 79(c) and Order 50 Rule 6 Civil Procedure Rules, an applicant must demonstrate sufficient cause to persuade a court to exercise such discretion. 33.In exercising such discretion this court is well guided by the Supreme Court decision in the case of Nicholas Kiptoo Arap Korir Salat –vs- Independent Electoral and Boundaries Commission and 7 Others (2014)eKLR where the court set out the principles or guidelines in exercising discretion as follows;“.......we derive the following as the underlying principles a court should consider in the exercise of such discretion;i)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.ii)A party who seeks for extension of time has the burden of laying basis to the satisfaction of the court.iii)Whether the court should exercise the discretion to extend time is a consideration to be made on a case-to-case basis.iv)Whether there is a reasonable reason for the delay, the delay should be explained to the satisfaction of court.v)Whether the respondent will suffer any prejudice if the extension is granted.vi)Whether the application has been brought without undue delay; andvii)Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 34.A similar position was taken by the Court of Appeal in Paul Wanjohi Mathenge –vs- Duncan Gichane Mathenge (2013)eKLR where the court while considering an application for extension of time to appeal made the following observations;“The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy, or caprice. I take note that in exercising my discretion, I ought to be guided by consideration of the factors………..including but not limited to, period of delay, reasons for delay, degree of prejudice to the respondent………if application is granted.” 35.This court has considered the reason advanced by the applicant to explain the reason(s) for the delay with a view to determining if the same meets the threshold or principles outlined in Nicholas Kiptoo Arap Korir Salat (supra). 36.As observed above, the only reason given by the applicant to explain the 7 months delay is that her former advocate never communicated to her and she only got to know about the taxed costs after being served with Notice to Show Cause. She relies on the decision in Osano –vs- C.F.C Stanbic Bank Limited (2025)KEHC 4292 (KLR) where the court held that a party ought not to be punished for mistakes or omissions of his counsel. 37.This court however, with utmost respect to the above decision, takes a different view with respect to mistake of counsel being given as a reason to explain delay or inaction. In my considered view, mistake of counsel has been misused by all and sundry litigants including those that are clearly indolent as an excuse to explain delay or inaction. In this instance the applicant is not an ordinary Mama Mboga who can claim that after leaving the matter to an advocate, she forgot to do a follow up. The applicant is a licensed court broker or auctioneer, who ordinarily is expected to patronize court corridors either picking warrants of execution or returning them. She should have taken necessary steps to at least know the progress of her case. 38.Secondly she says she was duly represented by former counsel whom she blames for letting her down. But she has not stated who the advocate is, when she last communicated with him or her and whether she was aware when her application dated 7/5/2024 was heard and dismissed and if she was served with party and party bill of costs or knew when it was heard and scheduled for ruling or determination. The applicant has not shade light on the above issues as a sign of good faith to demonstrate that she is deserving of this court’s discretion. All she has done is to heap blame on an unidentified counsel without demonstrating what actions she has taken even in form of a letter expressing her displeasure at the manner, if at all, in which the lawyer kept her in the dark. She ought to have given plausible explanation to explain inaction for 7 months but she has not. 39.While this court concurs that a party should not be punished for genuine mistakes of a counsel, that party should demonstrate good faith by showing that indeed the mistake is not of her own making but that of counsel. It is not enough to simply state that she should not be punished for mistake of her counsel. Otherwise an innocent opposite party can be prejudiced because of indolence or failure to comply with timelines set by law. There are good reasons why such timelines exist in the first place and the same is aptly captured by Sections 1A and1B of Civil Procedure Act. It is to bring litigation to an end and enable parties enjoy fruits of litigation which most of the times comes after long protracted legal battles. 40.This court finds that the application herein has not met the requisite threshold set in the cited cases above to persuade this court exercise its discretion in her favour. The long and short of this is that I find no merit in the application dated 26/1/2025. The same is dismissed with costs. DELIVERED, DATED AND SIGNED AT KITALE THIS 18TH DAY OF MAY, 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofKiprop for the ApplicantSifuna for the RespondentDuke/Chemosop – court assistants