https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9884

Mombasa Parents Club also Known as the Nyali School v Wangila and Wangila Advocates (Commercial Case E018 of 2026) [2026] KEHC 9884 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEHC 9884 (KLR) Republic of Kenya In the High Court at Mombasa Commercial Case E018 of 2026 WM Kagendo., J June 17, 2026 Between Mombasa Parents Club also Known as the Nyali School Applicant and Wangila and Wangila Advocates Respondent Ruling A. Introduction 1.Before this Court is a Chamber Summons dated 1st April 2026 filed by the Applicant, pursuant to Rules 16 and 17 of the High Court (Organisation and Administration)(General) Rules, 2016, Paragraph 11(4) of the Advocates (Remuneration) Order 2014, Order 40 Rules 1 and 2 of the Civil Procedure Rules, and Sections 1A, 1B, and 3A of the Civil Procedure Act. 2.The Applicant seeks the following substantive orders: (i) that this matter be certified urgent and heard ex parte in the first instance; (ii) that pending inter-partes hearing, this Court issue an order staying the execution of the Ruling of the Taxing Officer delivered on 10/12/2025, the consequent Certificate of Costs, and any other consequential proceedings; (iii) that the Applicant be granted leave to file an objection and Taxation Reference against the Ruling of the Taxing Officer out of time; (iv) that the leave granted in prayer (iii) operate as a further stay of execution pending hearing and determination of the intended Reference; and (v) that costs of this application be in the cause. 3.The Application is supported by the affidavit of Ali Mohamed Salim, the Chairman of the Applicant, sworn on 1st April 2026. The Respondent, Wangila & Wangila Advocates, filed a Replying Affidavit in opposition. Both parties filed written submissions, the Applicant on 12th May 2026 and the Respondent on 19th May 2026. B. Background 4.The background to this application is as follows. The Respondent, Wangila & Wangila Advocates, had acted for the Applicant in proceedings in HCCC No. E047 of 2022: Dr. Jean Uzel & 8 Others v Benjamin Gitonga & 5 Others (as the Management Board of the Mombasa Parents' Club). That matter was principally concerned with interlocutory relief pending arbitration and was determined on affidavit evidence without proceeding to a full trial. 5.Following the conclusion of those proceedings, the Respondent filed an Advocate-Client Bill of Costs dated 12th September 2024, being HCCOMMMISC No. E060 of 2024. The Bill of Costs sought Kshs. 1,961,925/= from the Applicant. 6.In the presence of both parties, the Honourable Court fixed 26th August 2025 as the date for delivery of the Taxation Ruling. When the parties attended Court on that date, the Ruling was not ready and no fresh date was fixed. Indeed, as late as 15th October 2025, the Respondent's own Advocates wrote to the Deputy Registrar seeking an update on the status of the pending Ruling demonstrating that neither party had received notice of the date on which the Ruling would eventually be delivered. 7.The Taxing Officer, Hon. G. Odera, delivered his Ruling on 10th December 2025 in the absence of the Applicant and without notice to the Applicant or its Advocates on record. By that Ruling, the Bill of Costs was taxed at Kshs. 985,505/= (comprising instruction fees of Kshs. 500,000/= plus VAT and other items, less a deduction of Kshs. 290,000/= acknowledged as having been paid). 8.The Applicant only became aware of the existence of that Ruling on 6th March 2026, upon being served with the Respondent's application seeking adoption of the Certificate of Costs as a judgment of the Court and thereafter the commencement of execution proceedings. By that time, the statutory timelines under Paragraph 11 of the Advocates Remuneration Order for filing a Reference had long lapsed. The Applicant moved this Court promptly thereafter, filing the present Chamber Summons on 1st April 2026. C. Issues For Determination 4.The following issues arise for determination:i.Whether the Applicant has established sufficient cause to warrant enlargement of time to file the intended Reference out of time.ii.Whether this Court should grant a stay of execution pending hearing and determination of the intended Reference. D. Analysis And Determination Issue (i): Whether there is sufficient cause for enlargement of time 4.The procedure for challenging a Taxing Officer's decision is set out in Paragraph 11 of the Advocates (Remuneration) Order. Paragraph 11(1) requires an aggrieved party to give written notice to the Taxing Officer of items objected to within fourteen days of the decision. Paragraph 11(2) then requires that, within fourteen days of receiving the Taxing Officer's reasons, the objector may apply to a Judge by Chamber Summons. However, Paragraph 11(4) empowers this Court, in its discretion, to enlarge any time fixed under sub-paragraphs (1) or (2) , including where that time has already expired. 5.The discretion to enlarge time under Paragraph 11(4) is well-settled. In exercising this discretion, the Court considers, among other factors: (a) the length of and explanation for the delay; (b) whether the delay was occasioned by the applicant's own inaction or indolence; (c) the arguability of the intended Reference; and (d) the degree of prejudice likely to be suffered by the parties if time is or is not enlarged. 6.On the facts before me, the Applicant's explanation for the delay is compelling and, in my view, fully satisfactory. The Ruling was scheduled for delivery on 26th August 2025 in the presence of both parties. When it was not ready on that date, no subsequent date was fixed and no notice of delivery was ever issued. The Respondent's own letter to the Deputy Registrar dated 15th October 2025 availed as Annexure "M-1" confirms that even the Respondent itself was unaware of when the Ruling would be delivered. The Ruling was ultimately delivered on 10th December 2025 in the absence of the Applicant. The Applicant only became aware of it on 6th March 2026 when served with execution proceedings. 7.This scenario is well-recognised in the case law of this Court as one that properly founds an application for enlargement of time. In Muri Mwaniki & WamitiAdvocates v Gachemi (Miscellaneous Application 10 of 2017) [2024] KEELC 5839 (KLR), this Court affirmed that where a taxation ruling is delivered without notice and a party only becomes aware of it later, the Court may properly enlarge time for filing a Reference. The Court was satisfied to enlarge time where the taxing officer had failed to render the ruling on the scheduled day, failed to notify parties of a new date, and failed to advise parties that a ruling had been rendered in their absence. 4.The position was similarly affirmed in Tom Ojienda & Associates Advocates v County Government of Meru [2021] KEHC 6739 (KLR), where the Court enlarged time and granted stay after finding that a taxation ruling had been delivered in the absence of parties without notice following alteration of the initial ruling date. That Court held that where the delay arises from failure by the Court to notify parties of the delivery date of the Ruling, such delay cannot be attributed to the applicant. This is precisely the position in the instant case. 5.In Odiya t/a Odiya & Associates Advocates v Ngengi (Miscellaneous Civil Case E1079 of 2023) [2025] KEHC 7448 (KLR) (29 May 2025), the Court enlarged time upon finding that the Taxing Master had erred by failing to deliver a ruling on the set date and subsequently failing to notify parties of the new delivery date. The reasoning applies with equal force here. 6.The Respondent, in opposition, raises four contentions. First, that the Applicant failed to exercise due diligence after the Ruling was not ready on 26th August 2025, citing the three-month gap before the Ruling was delivered. Second, that there was a further 26-day delay between the Applicant's knowledge of the Ruling on 6th March 2026 and the filing of this application on 1st April 2026. Third, that the Applicant had constructive notice through the Judiciary's e-filing portal. Fourth, that the Applicant had neither filed a Notice of Objection with the Taxing Officer nor sought the Taxing Officer's reasons, thereby bypassing the mandatory first step under Paragraph 11 and rendering the application incompetent. 7.I do not find these contentions persuasive. On the first ground, the Respondent itself, as demonstrated by its own letter of 15th October 2025, did not know when the Ruling would be delivered. It would be incongruous to hold the Applicant to a higher standard of diligence than that exercised by the Respondent in the same proceedings. A party cannot be required to continuously monitor a matter after a date for delivery has passed, where neither party was informed of any change. 8.On the second ground, a 26-day delay between discovery of the Ruling and the filing of this application is not, in the circumstances, so inordinate as to warrant dismissal. Upon discovery on 6th March 2026, the Applicant had to take instructions, instruct Advocates, and prepare the present application. The application was filed on 1st April 2026. This Court is satisfied that the Applicant acted with reasonable promptness. 4.On the third ground, the argument that the Applicant had constructive notice through the e-filing portal is not substantiated on the evidence before this Court. There is nothing on the record to show that the Applicant or its Advocates actually accessed or viewed the Ruling on the portal before 6th March 2026. Constructive notice through an electronic portal cannot substitute for the procedural duty to notify parties of the date on which a ruling will be delivered, particularly where a date had been fixed in open court and the Ruling was not ready on that date. 5.On the fourth ground , that the Applicant bypassed the mandatory first step of filing a Notice of Objection with the Taxing Officer , I note that this argument, while technically astute, elevates procedural rigidity over the interests of justice in circumstances where the Applicant was never notified of the Ruling. The timelines under Paragraph 11(1) run from the date of the decision. Where a party only becomes aware of a decision upon the commencement of execution, they cannot reasonably be expected to have filed a Notice of Objection within the 14-day window. The entire purpose of Paragraph 11(4) is to cure exactly such situations. As this Court held in Bwosiemo & 2 others v Muchangi Nduati Ngingo t/a Muchangi Nduati & Co. Advocates [2023] KEELC 21754 (KLR), the Applicants were not notified of the date of the Ruling, and this constituted a plausible reason for failing to lodge an objection within the prescribed time. 6.I therefore find that the Applicant has established sufficient cause to warrant enlargement of time. The delay is fully explained, attributable to the Court's failure to notify parties of the delivery date, and cannot be laid at the Applicant's door. Issue (ii): Whether a stay of execution should be granted 31.The jurisdiction of this Court to stay the execution of a Taxing Officer's Ruling and the resultant Certificate of Costs, pending the hearing and determination of a Taxation Reference, derives from multiple and overlapping sources. 32.First, and most directly, the power flows from Paragraph 11(4) of the Advocates (Remuneration) Order itself. By empowering this Court to enlarge the time for any step in the Reference process, Paragraph 11(4) necessarily carries with it an implied jurisdiction to stay execution so as to preserve the efficacy of the Reference once leave is granted. A right to pursue a Reference that is stripped of practical utility by pre-emptive execution is no right at all. The Court would be acting inconsistently with its own grant of leave if it permitted execution to run concurrently with the Reference it has just authorised. 31.Second, this Court has jurisdiction to stay a Certificate of Taxation because taxation of costs is itself part of the execution process. As held in Labh Singh Harman Singh Ltd v Attorney General & 2 Others [2016] eKLR, the Court has jurisdiction to order a stay of a Certificate of Taxation, as taxation is part of the execution process and the stay provisions under the Civil Procedure Rules accordingly apply by analogy. 32.Third, the inherent jurisdiction of this Court under Section 3A of the Civil Procedure Act empowers it to make such orders as are necessary to prevent injustice. Once leave to file a Reference is granted, allowing execution to proceed defeats the very purpose of that leave. A stay is therefore necessary, as a matter of principle, to give meaningful effect to the grant of leave. 33.The general principles applicable to the exercise of the stay jurisdiction in this context were stated in Butt v Rent Restriction Tribunal [1979] KLR 42, where the Court of Appeal held that the jurisdiction to grant a stay is discretionary, is not to be exercised in a rigid manner, and the overriding concern is to ensure that the Reference is not rendered nugatory by execution prior to its hearing and determination. Where an arguable Reference has been established, the Court's concern is to preserve the subject matter of the Reference pending its resolution. 34.Similarly, in Benson Ambuti Adega & 2 Others v Kibos Sugar and Allied Industries Ltd & 4 Others [2022] KEELC 1245 (KLR), a stay of execution of a taxing officer's decision was granted pending a Reference under Order 40 and Paragraph 11(2)(4) of the Advocates (Remuneration) Order, expressly on the ground that the Reference would otherwise be rendered nugatory. 35.Applying these principles to the present matter: the Respondent has already obtained a Certificate of Costs and Decree arising from the taxation and has commenced execution proceedings against the Applicant. If stay is not granted, the Applicant risks having execution proceed to its conclusion , attachment and possible sale of assets , before the intended Reference can be heard and determined. The Reference would thereby be rendered a mere academic exercise. 36.I am further satisfied that the Applicant has moved with reasonable dispatch. The application was filed on 1st April 2026, within 26 days of discovering the Ruling on 6th March 2026. No undue delay in seeking the stay has been demonstrated. 37.On the other side, granting a stay occasions the Respondent no permanent prejudice , only a temporary postponement in the recovery of its taxed costs. The Respondent is an advocate law firm with capacity to refund any sum that may be reduced on Reference if the Reference ultimately succeeds. Any transient inconvenience to the Respondent from the delay cannot outweigh the permanent and irreversible prejudice to the Applicant if execution is allowed to proceed before the Reference is heard. 31.The Respondent has further argued that granting stay is premature as the Reference itself has not yet been filed, and that this amounts to forum shopping given that adoption proceedings in HCCOMMMISC No. E060 of 2024 are pending before another Judge. On the first point, a stay pending an intended Reference that this Court has itself authorised by enlarging time is not premature , it is the necessary and logical complement of that grant of leave. On the second point, the present proceedings deal with a distinct question , whether the Applicant should be permitted to challenge the Ruling and whether execution pending that Reference should be stayed , and are not duplicative of the adoption proceedings. 32.In the result, I am satisfied that a stay of execution of the Ruling of the Taxing Officer dated 10th December 2025, the Certificate of Costs dated 27th January 2026, and all consequential proceedings, ought to be granted pending the hearing and determination of the intended Taxation Reference. E. Disposition 31.In the premises, and for the reasons set out above, I allow the Chamber Summons dated 1st April 2026 and make the following Orders:i.The Applicant is hereby granted leave to file an objection and Taxation Reference against the Ruling of the Taxing Officer, Hon. G. Odera, delivered on 10th December 2025 in HCCOMMMISC No. E060 of 2024, out of time. The Applicant shall file and serve the Reference within thirty (30) days from the date of this Ruling.ii.Pending the hearing and determination of the intended Reference, execution of the Ruling of the Taxing Officer dated 10th December 2025, the consequent Certificate of Costs dated 27th January 2026, and any consequential proceedings thereon, is hereby stayed.iii.Costs of this application shall be in the cause.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 17TH… DAY OF JUNE 2026.HON. LADY JUSTICE W. K. MICHENI JUDGE