[2025] KEHC 3060 (KLR)

Muri Mwaniki & Wamiti Advocates v Sanlam General Insurance Limited (Civil Miscellaneous Application E040 of 2024) [2025] KEHC 3060 (KLR) (17 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3060 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Civil Miscellaneous Application E040 of 2024

LN Mutende, J

March 17, 2025

Between

Muri Mwaniki & Wamiti Advocates

Applicant

and

Sanlam General Insurance Limited

Respondent

Ruling

1. The Applicant approached this court through Chamber Summons dated 9th May, 2023 seeking extension of time within which to object and file reference before the Judge against the ruling of the taxing officer delivered on 25th February, 2022 in taxation of Advocates/Client Bill of Costs dated 6th May, 2019.

2. The application is based on grounds that: the Applicant filed its Advocate Bill of Costs dated 6th May, 2019 on 20th May, 2019; taxation proceedings came up in court on several occasions and the ruling was last reserved for 26th January, 2022 but the same was not delivered; the Applicant anticipated delivery of the ruling would then be on notice. However, the Applicant was later to learn upon visits to the court registry, that there was a ruling in the court file said to have been delivered on 25th February, 2022 without notice or note on Coram for the said date.

3. That the Applicant is dissatisfied with the said taxation of Bill of Costs, but, by reason aforestated was long out of time to seek reasons and objection under paragraph 11(1) and (2) of the Advocates Renumeration Order.

4. That the Applicant has arguable grounds against the grossly difficult position including the fact that taxation was done without due regard to election under paragraph 22 of the Advocates Remuneration Order to raise the Bill of Costs under schedule 5 of the said order; that it was erroneous for the taxing officer to tax off majority of the items on the blanket ground that the case subject of the taxation was dismissed for want of prosecution without interrogating the specific items of the Bill of Costs; that no award was made for VAT on the taxed items as brought under item 53 of the Bill of Costs, and, that the Bill of Costs was in any event unopposed.

5. The application is supported by an affidavit deposed by Martin G. Mwaniki, an Advocate in conduct of the matter who reiterates what is stated on the face of the grounds of the application.

6. The Respondent filed a replying affidavit through Mercy Kaima the Legal Officer, claims department of the Respondent. She deposes that the application is unmerited. That the Bill of Costs emanates from proceedings where the Advocate/Applicant herein had been instructed by the defendant to defend him in Nyahururu CMCC No. 195 of 2008; Francis Maina Kimotho v Michael G. Kamau.

7. That there has been undue delay in lodging the application. That the litigant has a duty of following up matters hence cannot claim that it was not aware of the existence of a ruling dated 25th February, 2023 which is more than a year. The application being filed more than 15 months later means the Applicant did not act diligently.

8. The application was disposed through written submissions which I have exhaustively considered alongside the application, affidavits in support and opposition, together with authorities cited.

9. In determining the issue of extension of time for the Applicant to object and file a reference, I am guided by the case of Nicholas Kiptoo Korir Arap Salat v Independent Electoral & Boundaries Commission & 7 Others [2014] eKLR where the Supreme Court stated that;“the under-lying principles that a Court should consider in exercise of such discretion: 1. 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;

2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court

3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;

4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;

5. Whether there will be any prejudice suffered by the respondents if the extension is granted;

6. Whether the application has been brought without undue delay; and

7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

10. The impugned ruling of the taxing officer is dated 25th February, 2022; and the application herein is dated 9th May, 2023 and filed on 18th May, 2023. It was filed fifteen (15) months later. The explanation tendered was that although the ruling was to be delivered on 26th January, 2022 it was not and thereafter it was to be delivered on notice which was not the case. To his surprise it was delivered on 25th February, 2022 without notice.

11. In the instance, it is the court being blamed for not issuing a notice as required. I have perused the court record. When the matter came up on 8th December, 2021 the Applicant was represented. The record reads;“Miss Njuguna for Applicant.Njuguna: The bill of costs is unopposed. The same be taxed as drawn.Court: Ruling on 26/01/2022. ”

12. Circumstances under which the ruling dated 25th February, 2022 found itself on record is not clear; there is no notice to the parties. The delay in bringing the application was inordinate but the court is not absolved from blame of having a ruling on record without notice to the parties.

13. In the premises, I allow the instant application. Time within which the Applicant is to object and file reference is extended by fourteen (14) days of today.

14. The court being to blame for the omission, the costs shall be in the cause.

15. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF MARCH, 2025. ……………………L.N. MUTENDEJUDGE