https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3175

Kilonzo v Juma (Environment and Land Appeal 44 of 2019) [2026] KEELC 3175 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEELC 3175 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Appeal 44 of 2019 AY Koross, J May 26, 2026 Between Musili Kilonzo Appellant and Josphine Sele Juma Respondent Ruling 1.The subject of this ruling is the respondent’s unopposed chamber summons dated 19 June 2025. It states that it has been filed in accordance with the provisions of Section 1A and 3A of the Civil Procedure Act and Rule 11 of the Advocates Remuneration Order of Laws of Kenya. It seeks the following orders from this court: -a.Spent.b.Spent.c.The court be pleased to enlarge time for the respondent to file an objection and reference to the taxation ruling delivered on 3rd April 2025.d.The taxation ruling delivered on 3 April 2025 be set aside, and the bill of costs dated 27th May 2024 be taxed afresh.e.In addition to (d) above, the respondent be given an opportunity to present her submissions in response to the bill of costs dated 27th May 2024.f.Costs of this application be provided for. 2.The motion is supported by the grounds therein as well as the affidavit sworn on the same date by the respondent. In a nutshell, the respondent contends that she was denied a fair opportunity to engage with the appellant’s Bill of Costs (BOC) dated 27th May 2024 since she was never served with documents. Instead, her previous law firm on record, Ms. Stanley Nthiwa & Co. Advocates, was the one served with documents. As a result, it was taxed without their knowledge or input. Furthermore, she has credible objections to the BOC and only discovered the outcome when served with a warrant of attachment by the auctioneer. In light of these circumstances, she asserts that justice requires that she be granted a chance to present her objections and participate in the determination of the BOC, ensuring a fair process. 3.Significantly, when this matter was brought before the court on 13 November 2025, Miss Kiama, representing the respondent, informed the court that the appellant had filed a response to the summons. However, it appears that the document served upon the respondent is unfiled, as there is no court record indicating that such a response has been submitted, assessed, invoiced, paid for or filed. In other words, the summons is unopposed. 4.As directed by the court, the summons is considered through written submissions filed by the law firms of Ms. JK Mwalimu & Co. Advocates for the respondent, dated 18 December 2025, and Ms. Manasseh & Co. Advocates for the appellant, dated 15 February 2026. 5.Now, turning to the substance of the matter at hand and having carefully considered the summons, its grounds, affidavit, and articulate rival submissions, including the provisions of the law and judicial precedents relied upon, the distilled issues for determination are whether the court should extend time for the respondent to file an objection and taxation reference and whether the taxation ruling delivered on 3 April 2025 be set aside in entirety and the Bill of Costs be re-taxed. 6.Pointedly and as a preliminary issue, portions of the appellant’s submissions referencing a strange affidavit and annexures shall be ignored when analysing the issues for determination. Moreover, matters of evidence introduced therein will equally be disregarded. We proceed. a. Whether the Court Should Extend Time for the Respondent to File an Objection and Taxation Reference 7.As submitted by both parties, the legal framework for filing taxation objections, reference, and extension of such time is found in Order 11 of the Advocates (Remuneration) Order (“Order”) which provides: -“(1)Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.(2)The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.(3)Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.(4)The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.” 8.In the present context, it is uncontested that the respondent has neither submitted a notice of objection nor a reference to the taxation within the prescribed timelines. As a consequence, the respondent has invoked this court’s jurisdiction pursuant to Order 11 Rule (4) to seek an extension of time, which is permissible. The court, therefore, concludes that the summons is duly before it. 9.As articulated in this Order, when entertaining such summons, the court exercises judicious discretion based on law, evidence, and reasoning. In this regard, Kenyan courts are abundant with jurisprudence on non-exhaustive guiding principles regarding the extension of time to lodge notices of objection and references out of time. 10.The Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, espoused the guiding non-exhaustive principles that guide courts in entertaining applications of this nature as follows:“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; and7.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 11.In the Court of Appeal decision of MSA v KMKA [2024] KECA 1222 (KLR) that has been relied upon by the respondent, the court stipulated the guiding principles thus:-“The starting point is that the Court has unfettered discretion when considering such an application. However, like all judicial discretions, the Court has to exercise the same discretion upon reasons and not upon the whims of the Court. To guide the Court on what to consider when exercising the same discretion, the case law has established certain matters that the Court would look into as guiding principles. These are first the period of the delay must be considered. Second the Court has to consider the reasons for such a delay. Thirdly, the Court would consider whether the appeal, or intended appeal from which extension is required is arguable, that is that it is not frivolous appeal. Fourthly, the Court is required to consider if the respondent will be unduly prejudiced if the application were to be granted. Those are the main principles to be considered but the list is not exhaustive and can never be exhaustive as the exercise of discretion by itself demands that the Court should not be restricted in its operations.” 12.Lastly, in the case of County Government of Tana River v Miller and Company Advocates [2021] KEHC 5763 (KLR), which has been cited by the appellant, the court, when addressing an application for an extension of time to file a reference, stated:“As stated in the above cases the length of the delay and reasons for non-compliance of the time lines are important factors to influence the exercise of discretion of the Court.” 13.Respecting the reasons for the delay, the respondent has not disputed that the documents were served. Her contention is that her alleged previous advocates, Ms. Stanley Nthiwa & Co. Advocates, were erroneously served, presumably instead of personally serving her, or Ms. JK Mwalimu & Co. Advocates, who have lodged the instant motion. In the circumstances, this court has to test the veracity of these assertions against the court record. 14.In this matter, judgment was rendered on 22 November 2023, and at the time, the law firm of Ms. Stanley Nthiwa & Co. Advocates acted for the respondent and even filed written submissions dated 8 March 2023 concerning the appeal. 15.On matters of law, Order 9 Rule 9 of the Civil Procedure Rules governs the post-judgment process by which an advocate or party seeks to come on record in place of an advocate previously on record. This provision provides as follows:“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” 16.This proviso does not hinder a litigant from selecting an advocate of their choice. The purpose of this legal provision is to address instances where a litigant attempts to evade paying the legal fees of an advocate who was previously engaged, as well as to inform the court and involved parties of such a change. 17.However, it outlines procedures to be adhered to and if a party seeks to change Advocates, post-judgment, the first scenario is that the incoming advocate or litigant who now wants to act in person must make a formal application to the court with notice to all parties who participated in the suit for grant of leave to come on record or act in person. 18.In the alternative scenario, the incoming advocate or litigant in person must obtain the previous advocate’s written consent, file it with the court, and then seek leave to come on record. In the instant case, the court record shows that the provisions of Order 9 Rule 9 of the Civil Procedure Rules have never been complied with. It suffices to say that Ms. Stanley Nthiwa & Co. Advocates, who have never been replaced, were on record for the respondent and were properly served with the BOC and notice of taxation on 11 June 2024. Therefore, although the summons was filed in good time, this court finds the reasons for the delay are not plausible. It finds that the summons is not merited. Hence, these findings render a determination of issue (b) unnecessary. 19.In the end, this court hereby dismisses the Chamber Summons dated 19 June 2025 with no orders as to costs.It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 26TH DAY OF MAY, 2026.HON. A. Y. KOROSSJUDGERuling delivered virtually through Microsoft Teams Video Conferencing Platform.In the presence of;Ms. Kanja - Court Assistant.Miss Nyangasi for the Appellant/Respondent.No appearance for applicant.