https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11499

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **MISC E813 OF 2023** **MORARA OMOKE** **T/A MORARA OMOKE ADVOCATES........................................................APPLICANT** **VERSUS** **EDMOND LOUIS CHESNEAU...........................................................1ST RESPONDENT** **LUXURY LEATHER KENYA LIMITED...............................................2ND RESPONDENT** **RULING** 1. The 1st and 2nd respondents/ applicants filed the notice of motion dated 3.2.2025 seeking leave to file a reference against the taxation ruling of 19.4.2024 out of time. 2. The application is made under **section 51 (2) of the Advocates Act**, **Rule 11 of the Advocates Remuneration Order (ARO)** **and Article 50 of the Constitution**. 3. The application is supported by the affidavit sworn by the 1st applicant, **Edmond Chesneau** on 3.2.2025 and written submissions dated 13.5.2025. 4. The applicants rely on the following three grounds, that: - 5. **the former advocates filed an application for stay of execution pending appeal instead of a reference;** 6. **the parties had reached an agreement on payment of legal fees; and** 7. **the bill of costs dated 7.9.2023 is unconscionable for listing items for services not rendered and some services billed multiple times.** 8. The applicants relied on the following cases: - 9. **County Government of Tana River v Miller and Company Advocates [2021] eKLR** 10. **Mwangi S. Kimenyi v Attorney General and another [2014] eKLR** 11. **Gerphas Alphonse Odhiambo v Felix Adiego [2006] eKLR** 12. **Rajesh Rughani v Fifty Investments Limited & another [2016] KECA 829 (KLR**) 13. **Belinda Murai & Others v Amos Wainaina [1978] eKLR** **Response** 1. The applicant/ advocate/ respondent filed a preliminary objection through which it raised five points, which may be condensed into three, that: - 2. the respondents’ application offends **Rule 13 A** and **Para. 11 of the ARO** by seeking to improperly introduce new evidence not placed before the taxing officer during taxation. It also contended that the court lacks jurisdiction to consider the new evidence. 3. the application offends the doctrines of *res judicata*, *functus officio* and the principle that appellate courts cannot entertain evidence not tendered before the trial court 4. the application is frivolous, vexatious, scandalous and an abuse of the court process. 5. The respondent also filed a replying affidavit sworn on 20.5.2025 by its principal. It contended that the respondents are approbating and reprobating in that they previously denied the signature on the legal fee agreement and the Small Claims Court in **SCC Claim No. E8002 of 2022** found the agreement to be invalid and dismissed the claim. 6. The respondent faulted the respondents for raising issues already addressed by the **Kiambu High Court** in **Misc E174 of 2024** by **Hon. A. N. Sisenda**. 7. The respondent asserted that the bill of costs is drawn to scale; that it rendered the services and that the items no. 1 to 6 in the bill of costs are not duplicated. 8. The respondent further asserted that the respondents were properly served and that they have not shown any procedural error. 9. The respondent relied on the following cases: - 10. **Air Alfaraj Ltd v Raytheon Aircraft Credit Corporation & Another [2000] KECA 432** 11. **John Florence Maritime Services Ltd & Another v Cabinet Secretary, Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR)** 12. **Bernard Mugo Ndegwa v James Nderitu Githae & 2 Others [2010] eKLR** 13. **Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR** 14. **Daqare Transporters Limited v Chevron Kenya Limited [2020] KECA 309 (KLR)** 15. **Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR** **Analysis and Determination** **Preliminary objection** 1. The threshold to be met in preliminary objections was stated in the case of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696**. 2. It ought to raise pure points of law arising by clear implication out of the pleadings capable of disposing of the application at the preliminaries. 3. From a reading of the PO and guided by the above case, I am not persuaded that the objections raised are pure points of law. 4. I will thus consider the objections within the application. ***Res judicata*** 1. The advocate argued that the application is res judicata as the issues raised by the applicant have been addressed before by the Kiambu High Court in **Misc E174 of 2024**. 2. I have read the ruling of 5.7.2024 by **Hon. A. N. Sisenda** in **Misc E174 of 2024**. Though the parties are the same that appear here, the subject matter of that cause is the advocate’s bill of costs dated 24.5.2024. The subject matter here is bill of costs dated 7.9.2023. 3. *Res judicata* is codified under **section 7 of the Civil Procedure Act**. One of the elements of *res judicata* is that the subject matter is the same. 4. Therefore, the plea of *res judicata* cannot be invoked here because the subject matter is different. ***Functus officio*** 1. A court becomes *functus officio* when the matter is finally determined and there is no residual jurisdiction under the statute or rules. 2. Again, because the subject matter is different, the court is not *functus officio*. **Whether the time for filing the reference should be enlarged?** 1. The principles for consideration in determining the enlargement of time were rehashed by the Supreme Court in **Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 Others (Sup. Ct Application No. 16 of 2014) [2014] eKLR** stated as follows: - ***“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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”*** 1. The taxation ruling is dated 19.4.2024. The present application is dated 3.2.2025. The delay period is 9 months and 15 days. The delay is inordinate. 2. **A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR** 3. The explanation given for the delay by the respondents is that their former advocates mistakenly filed an application for stay of execution of the ruling instead of a reference. They further complained that the firm of advocates did not inform the taxing officer that the parties had reached an agreement on payment of legal fees. 4. The applicant relies heavily on existence of fee agreement to show that he has a good ground. However, the respondent exhibited the 1st applicant’s witness statement dated 4.4.2023 where he denied entering into a fee agreement dated 23.11.2022 with the respondent. This is a fundamental and relevant consideration. 5. But beyond that is the long period of delay. The explanation given is that the applicant’s advocate filed an application for stay instead of a reference. There is nothing to show that the application for stay of execution was intended to be or serve as a reference or that the stay application could not have been made in law. Such application was feasible in law and was made specifically for that purpose. There is nothing to show that a reference was intended. Therefore, I am not satisfied that the explanation is plausible. 6. In any event: - **“The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy. The client has a remedy against such an advocate.” Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] KECA 242 (KLR)** 1. In the upshot, I am not satisfied that the applicants have laid a basis for enlargement of time to file the reference. The application dated 3.2.2025 is dismissed with no order as to costs given the result herein. Orders accordingly. **Dated, signed and delivered through Microsoft Teams online application this 23rd day of July, 2026** **-----------------** **F. Gikonyo M** **Judge** **In the presence of: -** Morara for Applicant/Advocate Ms. Awuor for Respondent CA- Aggrey