https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5335

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **MISC. APPLICATION NO.E005 OF 2023** **APOLLO MUINDE** **& PARTNERS ADVOCATES………………ADVOCATE/RESPONDENT** **-VERSUS-** **NATIONAL LAND COMMISSION……………………….... ..APPLICANT** **RULING** 1. Before the court is an application made by Notice of Motion dated 18th March 2026, seeking the following orders: 2. **This Honourable Court be pleased to extend the time within which the Applicant may seek leave to appeal from the ruling delivered on 27th November 2025.** 3. **This Honourable Court be pleased to grant the Applicant leave to appeal to the Court of Appeal against the entirety of the ruling delivered on 27th November 2025.** 4. **The Notice of Appeal dated 11th December 2025 be deemed duly filed, or, in the alternative, the Applicant be granted leave to file a fresh Notice of Appeal out of time.** 5. **Costs of this application be in the cause.** 6. The Application is supported by the affidavit of Brian Ikol, Director, Legal Affairs and Dispute Resolution, working with the National Land Commission, the Respondent named in the reference application. 7. He deposed that on 27th November 2025, this Honourable Court delivered a ruling on a taxation reference, in which the Court found that the taxing officer erred in principle by applying the wrong schedule under the Advocates Remuneration Order. 8. Having made that finding, he deposed that the learned Judge proceeded to exercise discretion and re-taxed the instruction fees, instead of remitting the matter back to the taxing officer, and the Court justified this course based on the need to bring to finality the taxation herein. 9. It is the Respondent’s contention that the learned Judge erred in law by assuming the role of the taxing officer, and that the matter ought to have been remitted for re-taxation. 10. The Respondent/Applicant is desirous of appealing against the said decision, but there is no automatic right of appeal; hence this application. 11. That the Applicant, through counsel, erroneously filed a Notice of Appeal dated 11th December 2025 without first seeking leave, which error he deposed was inadvertent and attributable to counsel, and should not be visited upon the Applicant. 12. That upon realising this mistake, the Applicant has immediately filed this application for leave to file an appeal out of time. 13. The Deponent argues that the intended appeal raises serious and arguable points of law, including the scope of judicial discretion on a reference, whether delay alone justifies departing from remittal, and whether a judge may conduct a full re-taxation. The Deponent believes this Honourable Court has discretion to enlarge time for the purpose of seeking leave to appeal where sufficient cause is shown. **The Advocate’s replying Affidavit.** 1. Apollo Muinde, the Advocate herein, swore a replying affidavit in response to the instant application. He deposed that the ruling on a taxation reference, in which the Respondent is seeking enlargement of time to appeal against, was delivered on 27/11/2025. In contrast, the present Application was filed on 19/3/2026, four months later. That there is therefore inordinate delay in bringing up the present application, which has not been explained; 2. He also deposed that there was no error by the Honourable Judge re-taxing the Petitioner's bill dated 12/4/2021 as the Taxing Officer committed an error in principle and as such, the Honourable Judge invoked her inherent jurisdiction to re-tax the bill. 3. That the respondent, having been properly served with all the dates for the re-taxing of the bill, ought to have applied for leave during delivery of the ruling, and that failure to do so by then cannot now be remedied by waking from the slumber after having been served with a certificate of costs and purporting to apply for leave at this stage, which is clearly an afterthought. 4. In response to the contents of paragraph 6 of the Respondent's supporting affidavit, the Advocate deposed that the bill was not the initial one, as it emanated from a reference, and therefore the Respondent's allegation that the Judge assumed the bill should be re-taxed ought to be disregarded in its entirety. 5. It is also deposed that there is absolutely no draft intended appeal that raises serious and arguable points of law, and that none has been exhibited for this Honourable Court to interrogate and come to a verdict fully. As such, the same amounts to hearsay, which is not admissible in law, and it is further added that no Notice of Appeal has been served upon them. 6. In conclusion, the Advocate deposes that the entire Application is an afterthought and an abuse of the Court process, and therefore discloses no proper basis upon which the orders sought can be granted. It is therefore in the interests of justice, fairness and equity that the Application be dismissed with costs. 7. He added that the Respondent stands to suffer prejudice if this application is allowed, considering that the Applicant has not even paid a single coin towards the lawyer's fees for a matter where they were fully represented and have shown no intention of so doing. **The Applicant’s further affidavit.** 1. Brian Ikol, the Applicant’s Director: Legal Affairs and Dispute Resolution, swore another affidavit in response to the Advocate’s reply affidavit, reiterating that the Respondent/Applicant has demonstrated arguable grounds of appeal in the application dated 18th March 2026 and that the Respondent/Applicant has an arguable appeal. 2. The parties filed written submissions, which the Court has read and considered in full **Analysis and Determination** 1. The Applicant herein argues that the Court’s ruling dated 27th November 2025 was erroneous because the Court re-taxed the Advocate’s bill of costs instead of remitting the matter to the taxing master. 2. The Applicant filed notice of appeal dated 11th December 2025, and now seeks leave to have the same admitted as properly filed. 3. Order 43 rule 1(3) provides that: ***“An application for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.”*** 1. The Applicant relied on Section 95 of the Civil Procedure Act, which provides as follows: ***“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”*** 1. The Applicant has also relied on the Court’s power, under paragraph 11(4), to extend the 14-day period for notifying the taxing officer, which provides that: ***“The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for 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.”*** 1. In **Peter Julius Njoroge v Fidelity Commercial Bank Limited & another [2018] KEHC 6374 (KLR)**, the Court held that: ***“The Rule on enlargement of time expressly pronounces that the power is discretionary. As always, Judicial discretion ought to be exercised judiciously. Discretion will be exercised in favour of an Applicant if the delay is not inordinate, is excusable and where enlargement of time is not detrimental to the Rights by the Respondent.*** 1. As expressed by the Court in the authority above, the extension of time is a discretionary power of the Court, meaning the Court will examine the merits of the application on a case-by-case basis. The Supreme Court in the case of Nicholas **Kiptoo Arap Korir Salat v IEBC and 7 Others, Sup Ct. Application 16 of 2014**, cited and relied upon by both parties, established the principles to be applied in exercising the discretionary power to extend time: ***“Extension of time being a creature of equity, one can only enjoy it if [one] acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that [one] was not at fault so as to let time lapse. Extension of time is not a right of a litigant against a Court, but a discretionary power of the Courts which litigants have to lay a basis [for] where they seek [grant of it.…….******This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in the 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 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. ***where there is [good] 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, the public interest should be a consideration for extending time.”*** 8. My considered view is that coming to Court in March 2026 to seek an extension of time to file an appeal against this Court's ruling dated 27th November 2025 constitutes inordinate delay. The only explanation is that it was a mistake by the Counsel, but ignorance of the law is generally not a defence. 9. On the merits of the appeal, the Applicant argues that the Judge should not have taxed the reference but should have remitted it to the taxing master. However, the Court of Appeal in **Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR** held that: ***“And if a judge on reference from a taxing officer finds that the taxing officer has committed an error of principle, the general practice is to remit the question of quantum for the decision of taxing officer(see- D’Souza v Ferrao [1960] EA 602.) The judge has however a discretion to deal with the matter himself if the justice of the case so requires (see Devshi Dhanji vKanji Naran Patel (No. 2) (supra).”*** 1. In this case, the Court exercises its inherent jurisdiction and re-taxes item Number 1 on the Bill of Costs dated 12th April 2021, noting that this matter of costs has been back and forth in Court for a number of years. 2. I am therefore of the view that the Applicant lacks an arguable appeal, does not satisfy the requirements for exercising this Court’s discretion to extend time and to be granted leave to file an appeal, and, accordingly, the instant application is dismissed with costs. **Dated, signed, and delivered virtually at Nyeri on this 12th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr Hosea for the Applicant** **Mr Muinde for the Respondent** **Denis - Court Assistant**