https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12747

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CIVIL MISCELLANEOUS APPLICATION NO. E153 OF 2025 OMBUNA ONGERI & CO. ADVOCATES ………ADVOCATE/APPLICANT CORPORATE INSURANCE CO. LTD…………… CLIENT/RESPONDENT VERSUS JUDGMENT INTRODUCTION 1. Before this Court for determination are two substantive applications arising from an Advocate-Client taxation process. The first is a Notice of Motion dated 9th December 2025 filed by the Advocate/Applicant pursuant to Order 51 Rule 1 of the Civil Procedure Rules, Section 51(2) of the Advocates Act and Order 7 of the Advocates (Remuneration) Order seeking the following orders; i. That this Honourable Court be pleased to enter Judgment in favour of the Applicant herein in terms of the ruling delivered on 15th October 2025 in the sum of Kshs.97,607/=. ii. That subject to prayer a above this Honourable Court be pleased to issue a decree above for Kshs.97,607/= plus interest at the rate of 14% p.a from 26th October 2025 until payment in full. iii. That the costs of the application be in the cause. HCC MISC. NO.153 OF 2025 JUDGMENT - Page 1 of 16 2. The application is premised on the grounds set out on its face and the supporting affidavit of Robert Ongeri sworn on the instant date. The Applicant avers that he filed an Advocate-Client Bill of Costs dated 23 rd June 2025 which was duly served upon the Respondent on 26 th September 2025. The said Bill of Costs proceeded for taxation and was taxed in the sum of Kshs.97,607/= on 15th October 2025. A Certificate of Taxation was subsequently issued on 3rd December 2025. 3. It is the Applicant’s contention that the Certificate of Taxation has neither been challenged, set aside nor altered and that there is no dispute as to the existence of the retainer between the parties. The Applicant further contends that despite being notified of the outcome of the taxation and despite the issuance of the Certificate of Taxation, the Respondent has failed and/or neglected to settle the taxed costs, thereby necessitating the present application for entry of judgment. 4. The Respondent opposed the Advocate/Applicant’s application through a Replying Affidavit sworn by Emma Change on 25th February 2026. The Respondent contends that prior to and during the taxation proceedings, auctioneers acting on instructions levied distress against the Respondent’s property and carried away various household and office goods. 5. The Respondent further avers that as a consequence of the said distress, the Respondent’s premises were left in disarray and critical files, documents and paperwork were displaced and became inaccessible. It is the Respondent’s position that due to the foregoing HCC MISC. NO.153 OF 2025 JUDGMENT - Page 2 of 16 circumstances, it was unable to participate in the taxation proceedings. The Respondent consequently disputes the quantum of the taxed costs as well as the date from which interest is claimed. 6. The second application before Court is a Notice of Motion dated 24th February 2026 filed by the Respondent pursuant to Articles 48 and 50 of the Constitution of Kenya, Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 11 of the Advocates (Remuneration) Order seeking the following orders; I. That this Honourable Court be pleased to set aside the taxation of the Advocate/Client Bill of Costs dated 23rd June 2025 and Certificate of Taxation issued on 3rd December 2025. II. That this Honourable Court be pleased to grant the respondent leave to file and prosecute its objection/ reference to the said taxation out of time. III. That the Advocate/Client Bill of costs dated 23rd June 2025 be remitted back for Taxation afresh before a different Taxing Officer. IV. That costs of this application be in the cause. 7. The Respondent’s application is supported by the grounds set out on its face and the Supporting Affidavit of Emma Change sworn on the instant date. The Respondent reiterates that the taxation proceedings were conducted and concluded in its absence due to circumstances beyond its control arising from the distress levied by auctioneers. HCC MISC. NO.153 OF 2025 JUDGMENT - Page 3 of 16 8. The Respondent maintains that its failure to participate in the taxation proceedings was neither deliberate nor intended to obstruct the course of justice. It is therefore the Respondent’s position that it ought to be granted leave to file a reference out of time, the taxation and Certificate of Taxation set aside, and the Bill of Costs remitted for taxation afresh before a different taxing officer. ANALYSIS AND DETERMINATION 9. Having considered the two applications, the affidavits in support and in opposition thereto, the submissions by the parties and the entire record, this Court is of the considered view that the following issues arise for determination: i. Whether the Respondent has established sufficient cause to warrant the exercise of this Court’s discretion under Rule 11(4) of the Advocates (Remuneration) Order to enlarge time within which to file a reference against the taxation. ii. Whether the Advocate/Applicant has satisfied the threshold for entry of judgment under Section 51(2) of the Advocates Act. Whether the Respondent has established sufficient cause to warrant the exercise of this Court’s discretion under Rule 11(4) of the Advocates (Remuneration) Order to enlarge time within which to file a reference against the taxation. 10. The Respondent's Notice of Motion principally seeks leave to file and HCC MISC. NO.153 OF 2025 JUDGMENT - Page 4 of 16 prosecute, out of time, a reference challenging the taxation. Consequential to that relief, the Respondent also seeks orders setting aside the taxation of the Advocate-Client Bill of Costs, vacating the resultant Certificate of Taxation, and remitting the Bill of Costs for fresh taxation before a different taxing officer. The primary issue for determination is therefore whether the Respondent has established sufficient cause to warrant the exercise of this Court's discretion under Rule 11(4) of the Advocates (Remuneration) Order to enlarge time for lodging a reference. 11. The procedure for challenging a decision of a taxing officer is expressly prescribed under Rule 11 of the Advocates (Remuneration) Order. An aggrieved party must, within the prescribed time, give written notice specifying the items of taxation objected to, whereupon the taxing officer is required to furnish reasons for the impugned decision. It is only thereafter that the objector may competently invoke the jurisdiction of the Court by way of a reference. The procedure is mandatory and constitutes the exclusive statutory mechanism for impugning a taxation. Although the Court is vested with discretion under Rule 11(4) to enlarge time, that discretion is exercisable only upon sufficient cause being shown. 12. The superior courts have consistently affirmed the mandatory nature of compliance with Rule 11. In Ramuka Agencies Limited v Kirima [2024] KEELC 5378 (KLR), the Court emphasized that non- compliance with the procedural requirements of Rule 11 vitiates the intended reference and that Article 159(2)(d) of the Constitution HCC MISC. NO.153 OF 2025 JUDGMENT - Page 5 of 16 cannot be invoked to cure non-compliance with jurisdictional procedural requirements. Likewise, in Machira & Co. Advocates v Arthur K. Magugu & Another [2012] eKLR, the Court of Appeal underscored that the procedure prescribed under Rule 11 is intended to ensure the expeditious determination of objections to taxation and must be strictly observed. 13. The Court observes that the substantive reliefs seeking to set aside the taxation, vacate the Certificate of Taxation and remit the Bill of Costs for fresh taxation are entirely dependent upon the grant of leave to file a reference out of time. Unless time is first enlarged, there exists no competent reference through which the legality or propriety of the taxation can be interrogated. Those prayers are therefore purely consequential and cannot be considered independently of the prayer for enlargement of time. 14. It follows that the Court must first determine whether the Respondent has laid a proper basis for the enlargement of time under Rule 11(4). If that threshold is not met, the Court lacks any legal basis upon which it can proceed to consider the merits of the taxation, set aside the Certificate of Taxation, or remit the Bill of Costs for fresh taxation. 15. In determining whether to exercise its discretion, the Court is guided by the settled principles governing applications for extension of time, including the length of the delay, the explanation tendered, the conduct of the parties, whether the delay has been satisfactorily accounted for, and whether the interests of justice favour the grant of the indulgence HCC MISC. NO.153 OF 2025 JUDGMENT - Page 6 of 16 sought. 16. The Respondent attributes its failure to participate in the taxation proceedings to distress allegedly levied by auctioneers, contending that the exercise disrupted its operations and rendered critical documents inaccessible. 17. The Court has carefully considered that explanation. While the events described may have occasioned inconvenience, they do not satisfactorily explain the entirety of the delay in invoking this Court's jurisdiction under Rule 11. 18. The material before the Court demonstrates that the Respondent was duly served with the Advocate-Client Bill of Costs and the Notice of Taxation, as evidenced by the Affidavit of Service sworn by Ayienda Dennis Ongeri on 26th September 2025. That affidavit has neither been challenged nor rebutted by any contrary evidence. The Court is therefore satisfied that the Respondent had due notice of the taxation proceedings and an opportunity to participate therein. 19. The taxation proceeded in the Respondent's absence and a ruling was delivered on 15th October 2025. Thereafter, the Respondent did not take immediate steps to invoke the procedure prescribed under Rule 11. 20. Of particular significance is that the Firm of Mwangangi Nzisa & Associates Advocates entered appearance for the Respondent on 28th November 2025. From that point, the Respondent had the benefit HCC MISC. NO.153 OF 2025 JUDGMENT - Page 7 of 16 of legal representation and was in a position to seek appropriate relief. No explanation has been offered for the further delay of approximately three months before the present application was eventually filed on 24th February 2026. 21. The Court is guided by the principles enunciated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR that extension of time is not a right but an equitable remedy available only to a deserving party who lays a satisfactory basis for the exercise of the Court's discretion. The burden rests upon the applicant to provide a reasonable and satisfactory explanation for the delay. 22. Similarly, in Njeri Njoroge v Joseph Maina Gichuhi & Another [2018] KECA 29 (KLR), the Court of Appeal reiterated that an applicant seeking extension of time must account for the delay and demonstrate diligence in approaching the Court. Those principles are applicable with equal force to applications brought under Rule 11(4) of the Advocates (Remuneration) Order. 23. In the present case, the Respondent has failed to account for the period following the appointment of counsel. Once represented, it was incumbent upon the Respondent to act with promptitude in invoking the statutory procedure. The unexplained delay is inconsistent with the diligence expected of a litigant seeking the equitable discretion of the Court. 24. The chronology of events further reveals that the present application HCC MISC. NO.153 OF 2025 JUDGMENT - Page 8 of 16 was filed only after the Advocate/Applicant had moved the Court by the application dated 9th December 2025 seeking judgment on the Certificate of Taxation. The application therefore bears the hallmarks of a reactive measure prompted by enforcement proceedings rather than a timely and genuine effort to challenge the taxation. 25. Having considered the totality of the material before it, the Court is not satisfied that the Respondent has demonstrated sufficient cause to warrant the enlargement of time under Rule 11(4) of the Advocates (Remuneration) Order. The delay remains inadequately explained and no sufficient basis has been established to justify reopening concluded taxation proceedings. 26. In the absence of leave to file a reference out of time, there is no competent challenge to the taxation before the Court. It necessarily follows that the consequential prayers seeking to set aside the taxation, vacate the Certificate of Taxation, and remit the Advocate- Client Bill of Costs for fresh taxation are devoid of any legal foundation and cannot be granted. 27. Accordingly, the Respondent's Notice of Motion dated 24th February 2026 lacks merit and is hereby dismissed with costs. Whether the Advocate/Applicant has satisfied the threshold for entry of judgment under Section 51(2) of the Advocates Act 28. The second issue for determination is whether the Advocate/Applicant has satisfied the legal threshold for entry of judgment on the Certificate HCC MISC. NO.153 OF 2025 JUDGMENT - Page 9 of 16 of Taxation issued on 3rd December 2025. 29. The Advocate/Applicant’s application is premised on Section 51(2) of the Advocates Act, Cap 16 of the Laws of Kenya. The said provision provides as follows: General provisions as to taxation (1) Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate. (2) The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs. 30. The import of the above provision is that once an Advocate-Client Bill of Costs has been subjected to taxation and a Certificate of Taxation issued, the certificate becomes final and conclusive as to the amount of costs due unless the same is set aside or altered by the Court. Where the retainer between an Advocate and Client is not disputed, the Court is empowered to enter Judgment for the amount certified as due. 31. The Court is guided by the decision in Musyoka & Wambua HCC MISC. NO.153 OF 2025 JUDGMENT - Page 10 of 16 Advocates v Rustam Hira Advocates [2006] eKLR, where it was observed that Section 51(2) of the Advocates Act grants the Court discretion to enter judgment on a Certificate of Taxation which has not been set aside or altered, particularly where no dispute exists as to the retainer. 32. The Court stated as follows:- "Section 51 of the Act makes general provisions as to taxation, as the marginal note indicates. One of the provisions is that the Court has discretion to enter Judgment on a Certificate of Taxation which has not been set aside or altered or where there is no dispute as to retainer. This, in my view is a mode of recovery of taxed costs provided for by law in addition to filing suit …..." 33. The rationale behind Section 51(2) of the Advocates Act is that once the taxing officer has undertaken the taxation process and certified the amount due, the certificate provides a simplified mechanism for recovery of such costs without requiring an Advocate to institute separate proceedings. However, the certificate remains subject to challenge where a party successfully demonstrates grounds for setting aside or alteration. 34. In the present matter, the record demonstrates that the Advocate/Applicant filed an Advocate-Client Bill of Costs dated 23 rd June 2025 against the Respondent. The Bill of Costs was served upon the Respondent on 26th September 2025. The taxation proceeded and HCC MISC. NO.153 OF 2025 JUDGMENT - Page 11 of 16 the taxing officer delivered a ruling on 15th October 2025, taxing the Bill of Costs in the sum of Kshs.97,607/=. A Certificate of Taxation was subsequently issued on 3rd December 2025. 35. The Advocate/Applicant contends that despite the issuance of the Certificate of Taxation and notification of the taxed amount, the Respondent has failed and/or neglected to settle the certified costs. It is therefore the Applicant’s position that the requirements for entry of Judgment under Section 51(2) of the Advocates Act have been met. 36. The Respondent opposes the application for judgment through the Replying Affidavit of Emma Change sworn on 25th February 2026. The Respondent contends that it did not participate in the taxation proceedings because auctioneers acting on instructions had levied distress against its property, resulting in the removal of household and office goods and the displacement of important documents. 37. The Respondent further disputes the quantum of costs awarded and challenges the date from which interest is claimed. It is the Respondent’s position that judgment ought not to be entered in circumstances where it was allegedly prevented from participating in the taxation process and where it disputes the amount awarded. 38. This Court has considered the Respondent’s opposition. The Court appreciates that the Respondent has raised concerns regarding its absence during taxation. However, those concerns were the subject of the Respondent’s application dated 24th February 2026 seeking leave to file a reference out of time and to set aside the taxation and HCC MISC. NO.153 OF 2025 JUDGMENT - Page 12 of 16 Certificate of Taxation. 39. Having considered and dismissed the said application, the Certificate of Taxation issued on 3rd December 2025 remains valid and has not been set aside, altered or stayed. This Court cannot, in an application for judgment under Section 51(2) of the Advocates Act, reopen the merits of the taxation or reconsider the quantum of costs assessed by the taxing officer. The Court’s jurisdiction at this stage is limited to determining whether the statutory conditions for entry of judgment have been met. 40. The Respondent’s dispute regarding the amount awarded could only be pursued through the appropriate process of challenging the taxation. Having failed to obtain leave to challenge the taxation out of time, the Respondent cannot rely upon the same objections as a basis for defeating enforcement of a Certificate of Taxation which remains valid and binding. 41. The Court further notes that there is no dispute regarding the Advocate/Applicant’s retainer. The Respondent’s opposition is not founded on the absence of an advocate-client relationship but rather on the circumstances surrounding its failure to participate in taxation and its dissatisfaction with the amount taxed. In the absence of a dispute as to retainer and in the absence of a successful challenge to the Certificate of Taxation, the statutory threshold under Section 51(2) of the Advocates Act has been satisfied. HCC MISC. NO.153 OF 2025 JUDGMENT - Page 13 of 16 42. The Court is further guided by the decision in Lubulellah & Associates, Advocates v N. K. Brothers Limited [2014] eKLR, where the Court held: "The law is very clear that once a Taxing Master has taxed the costs, issued a Certificate of Costs and there is no reference against his ruling or there has been a ruling and a determination made and not set aside and/or altered, no other action would be required from the court save to enter Judgment. An Applicant is not required to file suit for the recovery of costs. The Certificate of Costs is final as to the amounts of the costs and the court would be quite in order to enter Judgment in favour of the Applicant against the Respondent herein for the taxed sum indicated in the Certificate of Taxation that was issued on 25th November, 2012." 43. Applying the above principles, this Court finds that the Advocate/Applicant has satisfied the requirements for entry of judgment. The Certificate of Taxation issued on 3rd December 2025 remains undisturbed, the retainer is not disputed, and the amount certified by the Taxing Officer remains due and payable. 44. With regard to the claim for interest, the Respondent has disputed the date from which interest is claimed. The Court has considered the said objection alongside the provisions governing interest on an Advocate’s fees. HCC MISC. NO.153 OF 2025 JUDGMENT - Page 14 of 16 45. Rule 7 of the Advocates (Remuneration) Order permits an Advocate to charge interest upon fees due and payable by a client in accordance with the conditions stipulated therein. The said provision recognizes an Advocate’s entitlement to claim interest on unpaid costs where the requisite conditions have been satisfied. 46. The Court notes that the Bill of Costs was served upon the Respondent on 26th September 2025 and that the interest claimed from 26th October 2025 corresponds with the period contemplated under Rule 7 of the Advocates (Remuneration) Order. 47. Having considered the circumstances of this matter, this Court finds no basis for denying the Advocate/Applicant interest as claimed. The Respondent’s challenge to the taxation having failed, the amount certified by the taxing officer remains due and payable. The Advocate/Applicant is therefore entitled to judgment for the taxed sum together with interest at the rate claimed from 26th October 2025 until payment in full. 48. Accordingly, this Court finds that the Advocate/Applicant’s Notice of Motion dated 9th December 2025 is merited and the same succeeds. 49. The court consequently makes the following orders; a) The Notice of Motion application dated 24th February 2026 is hereby dismissed. b) Judgment be and is hereby entered in favour of the Applicant against the Respondent for the sum of Kenya HCC MISC. NO.153 OF 2025 JUDGMENT - Page 15 of 16 Shillings ninety-seven thousand six hundred and seven (Kshs.97,607). c) A decree be and is hereby issued in favour of the Applicant against the Respondent for the sum of Kenya Shillings Ninety-Seven Thousand Six Hundred and Seven (Kshs. 97,607), together with interest thereon at the rate of 14% per annum from 26th October 2025 until payment in full. d) The Client/Respondent shall pay to the Advocate/Applicant the costs of the application, assessed at Kenya Shillings Thirty Thousand (Kshs.30,000). Orders accordingly. File closed accordingly DATED, SIGNED, AND DELIVERED AT KIAMBU THIS 28TH DAY OF JULY, 2026. _________________________ BAHATI MWAMUYE JUDGE In the Presence Of: Counsel for the Applicant – Counsel for the Respondent – Court Assistant - HCC MISC. NO.153 OF 2025 JUDGMENT - Page 16 of 16