https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12700

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CIVIL MISCELLANEOUS APPLICATION NO.E152 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: a) That this Honourable Court be pleased to enter judgment in favour of the Applicant herein in terms of the ruling delivered on 23rd October 2025 in the sum of Kenya Shillings Seventy-One Thousand Four Hundred Eighty-Two and Sixty Cents (Kshs.71,482.60). b) That subject to prayer (a) above, this Honourable Court be pleased to issue a decree for Kshs.71,482.60 plus interest HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 1 of 18 at the rate of 14% per annum from 8th September 2025 until payment in full. c) That the costs of the application be in the cause. 2. The application is premised on the grounds set out on its face and the Supporting Affidavit of Robert Ongeri sworn on 9th December 2025. The Applicant avers that he filed an Advocate-Client Bill of Costs dated 23rd June 2025 which was duly served upon the Respondent on 8 th September 2025. The said Bill of Costs proceeded for taxation and was taxed in the sum of Kshs.71,482.60 on 23rd 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 proceedings 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 HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 2 of 18 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 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 the 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. HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 3 of 18 7. The Respondent’s application is supported by the grounds set out on its face and the Supporting Affidavit of Emma Change sworn on 25th February 2026. The Respondent reiterates that the taxation proceedings were conducted and concluded in its absence due to circumstances arising from distress levied against its property by auctioneers acting on instructions. 8. The Respondent maintains that its failure to participate in the taxation proceedings was neither deliberate nor intended to obstruct the course of justice but was occasioned by circumstances beyond its control. 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 HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 4 of 18 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 application principally seeks orders setting aside the ruling on taxation delivered by the taxing officer on 23 rd October 2025, together with the consequential setting aside of the Certificate of Taxation issued on 3rd December 2025. The Respondent further seeks leave to file and prosecute, out of time, a reference challenging the said taxation and, consequentially, an order remitting the Advocate-Client Bill of Costs dated 23rd June 2025 for taxation afresh before a different taxing officer. 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 is required, in the first instance, to lodge a written notice of objection within the prescribed period, 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 prescribed statutory mechanism for impugning a taxation. Although the Court is vested with discretion under Rule 11(4) to enlarge time, such HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 5 of 18 discretion is exercisable only upon sufficient cause being demonstrated. 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 underscored that non- compliance with the procedural requirements of Rule 11 renders an intended reference incompetent and that Article 159(2)(d) of the Constitution cannot be invoked to cure failure to comply with mandatory procedural requirements. Similarly, in Machira & Co. Advocates v Arthur K. Magugu & Another [2012] eKLR, the Court of Appeal emphasized that the procedure prescribed under Rule 11 is intended to facilitate the expeditious determination of objections to taxation and must be strictly observed. 13. The Court has considered the nature of the reliefs sought by the Respondent. The prayer seeking to set aside the ruling on taxation is premised upon the intended challenge to the decision of the taxing officer through a reference. The further prayer for leave to file and prosecute a reference out of time is therefore intended to regularize the Respondent’s challenge to the taxation outside the prescribed timelines. 14. It follows that the Court must first consider whether the Respondent has demonstrated sufficient cause to warrant enlargement of time under Rule 11(4) of the Advocates (Remuneration) Order. Unless such leave is granted, there would be no competent reference upon which the Court may interrogate the merits of the taxation or disturb HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 6 of 18 the decision of the taxing officer. However, the prayer seeking to set aside the ruling on taxation must also be considered on its own merits, having regard to the material placed before Court and the circumstances under which the taxation proceedings were conducted. 15. Rule 11(4) of the Advocates (Remuneration) Order provides as follows: "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." 16. The wording of the provision makes it clear that enlargement of time is discretionary. However, such discretion is not exercised as a matter of course upon an application being made. An applicant seeking enlargement of time must place before the Court sufficient material demonstrating the reasons for failure to comply with the prescribed timelines and why, in the interests of justice, the Court ought to permit the intended step to be undertaken outside the stipulated period. 17. In determining whether to exercise its discretion, the Court must consider the circumstances surrounding the delay, the explanation advanced, the conduct of the parties, whether the delay has been satisfactorily accounted for, and whether the applicant has HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 7 of 18 demonstrated sufficient cause to warrant the indulgence sought. 18. In the present matter, the Respondent’s explanation for failing to challenge the taxation within the prescribed period is that auctioneers acting on instructions levied distress against the Respondent’s property and carried away various household and office goods. The Respondent contends that, as a consequence, its premises were left in disarray and critical files, documents and paperwork were displaced and became inaccessible. 19. The Court has considered the explanation advanced by the Respondent. While the Court appreciates that the circumstances described may have occasioned disruption to the Respondent’s operations, the explanation must be considered alongside the record before Court and the Respondent’s obligation to comply with the procedure prescribed for challenging taxation proceedings. 20. The record before Court demonstrates that the Respondent was not wholly absent from the taxation proceedings. The Firm of Kibet & Rop Advocates entered appearance on behalf of the Respondent vide a Notice of Appointment dated 19th August 2025. Thereafter, the said firm participated in the taxation proceedings through the filing of Grounds of Opposition dated 20th August 2025 together with an Affidavit sworn by Anne Odongo, the Legal Manager of the Respondent, dated 15th August 2025. 21. The Court further notes that the Advocate/Applicant exhibited an HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 8 of 18 Affidavit of Service sworn by Ayienda Dennis Ongeri on 26th September 2025 confirming service of the Advocate-Client Bill of Costs and the Notice of Taxation upon the Respondent. The said Affidavit of Service has not been challenged by the Respondent, nor has the Respondent placed before Court any material demonstrating that it was unaware of the taxation proceedings. 22. The taxation proceedings thereafter proceeded and the taxing officer delivered a ruling on 23rd October 2025. It is therefore apparent from the record that the Respondent was aware of the taxation proceedings and had an opportunity to participate in the process through counsel who was then on record. 23. Of significance is that the Firm of Mwangangi Nzisa & Associates Advocates subsequently entered appearance vide a Notice of Appointment dated 19th November 2025 and filed on 24th November, 2025, after the ruling on taxation had already been delivered. The record before Court does not disclose the circumstances under which the said firm came on record or replaced the advocates who had previously participated in the taxation proceedings. 24. Subsequently, the said firm filed a Replying Affidavit and a Notice of Motion seeking, inter alia, to set aside the taxation proceedings. The said documents were filed on 27th February 2026, with the application being dated 24th February 2026 and the Replying Affidavit being dated 25th February 2026. HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 9 of 18 25. The Court observes that by the time the Respondent moved this Court seeking to challenge the taxation proceedings, the Advocate/Applicant had already filed the Notice of Motion dated 9th December 2025 seeking entry of judgment on the Certificate of Taxation. The timing of the Respondent’s application is therefore a relevant consideration in determining whether sufficient cause has been demonstrated to warrant the Court’s intervention. 26. The Court does not make a finding on the circumstances under which the second firm of advocates came on record. However, the sequence of events remains material. The Respondent participated in the taxation proceedings through counsel, the ruling on taxation was delivered on 23rd October 2025, and no immediate steps were taken to challenge the decision of the taxing officer within the timelines prescribed under Rule 11 of the Advocates (Remuneration) Order. 27. The Respondent was therefore required to demonstrate not only the circumstances which allegedly prevented participation in the taxation proceedings, but also the steps taken thereafter, once aware of the taxation outcome, to promptly invoke the jurisdiction of this Court. In the absence of such explanation, the Court is unable to find that the delay has been satisfactorily accounted for. 28. The Court is guided by the decision of the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, where the Court held that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the Court. The HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 10 of 18 applicant bears the burden of laying a basis to the satisfaction of the Court, including providing a reasonable explanation for the delay. 29. 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 provide a satisfactory explanation for the delay and that the discretion of the Court must be exercised judiciously based on the circumstances of each case. 30. Having considered the circumstances of this matter, this Court finds that the Respondent has failed to demonstrate sufficient cause to warrant the exercise of discretion under Rule 11(4) of the Advocates (Remuneration) Order. The delay has not been satisfactorily explained and the circumstances presented do not justify reopening concluded taxation proceedings. 31. Consequently, the prayer for leave to file and prosecute a reference against the taxation out of time is declined. 32. Having declined to enlarge time, and having further considered the circumstances under which the taxation proceedings were conducted, the Court finds no basis upon which to set aside the ruling on taxation delivered on 23rd October 2025 or the resultant Certificate of Taxation issued on 3rd December 2025. The prayer seeking to set aside the taxation and the Certificate of Taxation is accordingly declined. 33. In the absence of any order disturbing the taxation or setting aside the Certificate of Taxation, the further prayer seeking remission of the HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 11 of 18 Advocate-Client Bill of Costs dated 23rd June 2025 for taxation afresh before a different taxing officer cannot be sustained and is accordingly declined. 34. The Respondent’s Notice of Motion dated 24th February 2026 is therefore without 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 15. The second issue for determination is whether the Advocate/Applicant has satisfied the legal threshold for entry of Judgment on the Certificate of Taxation issued on 3rd December 2025. 16. 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 HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 12 of 18 for the sum certified to be due with costs. 17. 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 covered thereby 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. 18. The Court is guided by the decision in Musyoka & Wambua Advocates v Rustam Hira Advocates [2006] eKLR, where the Court observed 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..." 19. 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 of Taxation 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. HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 13 of 18 20. 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 said Bill of Costs was served upon the Respondent on 8th September 2025. The taxation proceeded and the taxing officer delivered a ruling on 23rd October 2025 taxing the Bill of Costs in the sum of Kenya Shillings Seventy-One Thousand Four Hundred Eighty-Two and Sixty Cents (Kshs.71,482.60). A Certificate of Taxation was subsequently issued on 3rd December 2025. 21. The Advocate/Applicant contends that despite 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. 22. The Respondent opposes the application for entry of judgment on the basis that it did not participate in the taxation proceedings due to circumstances arising from distress levied against its property by auctioneers acting on instructions. The Respondent further disputes the quantum of costs awarded and challenges the date from which interest is claimed. 23. This Court has considered the Respondent’s opposition. The basis upon which the Respondent seeks to resist entry of Judgment is that it was denied an opportunity to participate in the taxation proceedings. However, having considered the record and the findings made HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 14 of 18 hereinabove, this Court is not persuaded that the said contention represents the correct position. The record demonstrates that the Respondent was represented during the taxation proceedings through the Firm of Kibet & Rop Advocates, which entered appearance on behalf of the Respondent and participated in the taxation process. 24. The Respondent’s contention that it was unable to participate in the taxation proceedings is therefore not supported by the record before Court. Further, the Respondent’s dissatisfaction with the quantum of costs awarded was an issue that could only properly be addressed through the procedure prescribed under Rule 11 of the Advocates (Remuneration) Order. Having failed to obtain leave to file a reference out of time, the Respondent cannot rely on the same objections as a basis for defeating enforcement of a Certificate of Taxation which remains valid and binding. 25. Having declined to enlarge time and dismissed the Respondent’s application dated 24th February 2026, the Certificate of Taxation issued on 3rd December 2025 remains valid, undisturbed and has neither been set aside nor altered. This Court cannot, in an application for entry of 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 jurisdiction of this Court at this stage is limited to determining whether the statutory requirements for entry of judgment have been satisfied. 26. The Court further notes that there is no dispute regarding the existence of the advocate-client relationship between the parties. The HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 15 of 18 Respondent’s opposition is not founded on the absence of a retainer but rather on the circumstances surrounding its alleged inability to participate in the taxation proceedings and its dissatisfaction with the amount taxed. 27. In the absence of a dispute as to retainer and there being no successful challenge to the Certificate of Taxation, the statutory threshold for entry of judgment under Section 51(2) of the Advocates Act has been met. 28. 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." 29. Applying the foregoing principles to the present matter, this Court finds that the Advocate/Applicant has satisfied the requirements for entry of HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 16 of 18 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. 30. With regard to the claim for interest, the Respondent has challenged the date from which interest is claimed. The Advocate/Applicant has sought interest at the rate of 14% per annum from 8 th September 2025 until payment in full. 31. The Court has considered the said claim alongside the circumstances of this matter. The record demonstrates that the Bill of Costs was served upon the Respondent on 8th September 2025. The Respondent has not placed before Court any sufficient basis upon which the claim for interest ought to be declined. 32. Having found that the Certificate of Taxation remains valid and enforceable, the Advocate/Applicant is entitled to judgment for the taxed sum together with interest as prayed. 33. Accordingly, this Court finds that the Advocate/Applicant’s Notice of Motion dated 9th December 2025 is merited and the same succeeds. 34. 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 HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 17 of 18 Shillings Seventy-One Thousand Four Hundred Eighty-Two and Sixty Cents (Kshs.71,482.60). c) A decree be and is hereby issued in favour of the Applicant against the Respondent for the sum of Kenya Shillings Seventy-One Thousand Four Hundred Eighty-Two and Sixty Cents (Kshs.71,482.60), together with interest thereon at the rate of 14% per annum from 8th September 2025 until payment in full. d) The Respondent shall pay to the 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 ON THIS 28TH DAY OF JULY, 2026. _____________________________ BAHATI MWAMUYE JUDGE In the Presence Of: Counsel for the Applicant - Counsel for the Respondent - Court Assistant - HCCC MISC.NO.E152 OF 2025 JUDGMENT - Page 18 of 18