https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12771

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **MISC. CIVIL APPLICATION NO. E051 OF 2025** **ONYINKWA & D. ONYINKWA T/A ONYINKWA &** **CO. ADVOCATES ……………………………………………..ADVOCATE/APPLICANT** **-VERSUS-** **MONARCH INSURANCE CO. LTD ………………………….CLIENT/RESPONDENT** **Coram: Before Justice R. Nyakundi** **M/S Onyinkwa & Co. Advocates** **M/S Samson Munene & Co. Advocates** **RULING** 1. What is pending before this Honourable Court for determination is Chamber Summons taken out by Monarch Insurance Co. Ltd (hereinafter “the Client”), expressed to be brought under Paragraph 11 of the Advocates (Remuneration) Order, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution of Kenya, 2010. Although the Chamber Summons bears the date 9th April 2026, it was filed on 23rd April 2026 and it is by reference to the filing date that it must be considered. 2. A preliminary word on nomenclature is necessary. The pleadings describe the parties inconsistently. In the Client's own application, the parties are cast as Advocate/Respondent and Client/Applicant, whereas in the Grounds of Opposition and the Written Submissions filed by Onyinkwa & Co. Advocates hereinafter “the Advocate” they are cast as Applicant and Respondent respectively. To avoid confusion and consistent with the cause title in the taxing officer's ruling, this Ruling refers to the parties simply as “the Advocate” Onyinkwa & Co. Advocates and “the Client” Monarch Insurance Co. Ltd. It is the Client that is the moving party in the present interlocutory application, notwithstanding that it is the Respondent in the substantive cause. 3. The Client seeks, in substance, the following orders: 4. *Spent* 5. *That time be enlarged for the Client to issue a Notice of Objection to the decision of the taxing officer delivered on 31st March 2026;* 6. *That the annexed Notice of Objection be deemed duly filed and properly on record upon payment of the requisite fees, if any;* 7. *That the taxed amount be corrected from Kshs. 154,832 to Kshs. 134,832, reflecting the taxed-off sum of Kshs. 40,000 from the claimed Kshs. 174,832;* 8. *That a further Kshs. 5,000, being disbursements said not to have been allowed, be deducted;* 9. *That any certificate of taxation issued bearing the said errors be revoked and an amended certificate issued; and* 10. *That costs of the application be provided for.* **The Client’s Case** 1. The application is supported by the affidavit of **Neema Ndeti**, the Client's Legal Officer, sworn on 23rd April 2026. Her material depositions are these. The Advocate filed an Advocate–Client Bill of Costs dated 8th August 2025 claiming Kshs. 174,832. The Bill was taxed and a ruling delivered on 31st March 2026, taxing the Bill at Kshs. 154,832 (annexure “NN-1”). From that ruling, the taxing officer expressly taxed off Kshs. 40,000 from the sum claimed. The Client contends that there is an apparent arithmetic error, because Kshs. 174,832 less Kshs. 40,000 yields Kshs. 134,832 and not Kshs. 154,832; and that the taxing officer further failed to reflect a disallowance of Kshs. 5,000 in disbursements. 2. The Client concedes that the statutory fourteen (14) days for lodging an objection have lapsed, and prays for enlargement of time. It deposes that the delay was not deliberate but arose from the need to keenly review the ruling; that no prejudice will be occasioned to the Advocate; and that unless time is enlarged the Advocate may proceed to execution upon an erroneous sum, to the Client's prejudice. The Notice of Objection is annexed as “NN-2”. 3. Notably, the Client filed no written submissions in support of the application. **The Advocate’s Response** 1. The Advocate opposes the application through Grounds of Opposition dated 22nd July 2026 and Written Submissions of even date. The opposition may be distilled into three complaints. 2. First, that no sufficient cause has been shown to enlarge time. The ruling having been delivered on 31st March 2026 and the application filed almost a month later, the delay is said to fall outside the mandatory timelines under Paragraph 11 of the Advocates (Remuneration) Order, and the explanation that the Client needed time to “keenly review the ruling” is dismissed as vague, unsubstantiated, and incapable of amounting to sufficient cause. The Advocate relies on ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR*** for the proposition that extension of time is not a right but an equitable remedy available only to a deserving party whose delay is explained to the satisfaction of the Court. 3. Second, that the application is an afterthought and an abuse of the process of the Court. The Advocate points out that it took no step after the ruling until after the Advocate had, on 13th April 2026, moved the Court under Section 51(2) of the Advocates Act to have the Certificate of Taxation adopted as a judgment/decree. The application, it is urged, was precipitated not by any genuine dissatisfaction with the taxation but by the Advocate's efforts to realise the fruits of the taxed costs. Equity, the Advocate submits, aids the vigilant and not the indolent. 4. Third, that the substantive prayers challenging the quantum of the taxed Bill (prayers 4, 5 and 6) are premature and procedurally incompetent. The Advocate submits that reassessment or variation of a taxed Bill can only be undertaken within a properly constituted reference under Paragraph 11 of the Advocates (Remuneration) Order, filed after leave (where necessary) has been obtained, and not within an application that merely seeks leave to object out of time. To grant those prayers now, it is said, would be to determine a reference that has not been filed. The Advocate further relies on Section 51(2) of the Advocates Act, contending that the Certificate of Taxation, not having been set aside or altered, remains valid and enforceable. **On the absence of the Client's submissions** 1. I have not lost sight of the fact that the Client, having moved the Court, did not file submissions, while the Advocate did. That omission is not, however, fatal to the application. Written submissions are an aid to the Court; they are not evidence, and they do not displace the pleadings and the affidavit evidence properly on record. The Court retains the duty to determine the application on its merits on the material before it. I have therefore considered the application on the strength of the Chamber Summons and the supporting affidavit of Neema Ndeti, tested against the Grounds of Opposition and submissions filed by the Advocate. **Analysis and Determination** 1. I have read and considered the Chamber Summons, the Grounds of Opposition and the rival submissions. The following issues are manifest for determination by this Honourable Court: - 2. *Whether this Court has jurisdiction to enlarge the time within which the Client may object to the taxation.* 3. *Whether the Client has established sufficient cause to warrant the exercise of that discretion in its favour.* 4. *Whether the substantive prayers seeking correction, variation and revocation of the taxed Bill and Certificate (prayers 4, 5 and 6) are properly before the Court in this application.* 5. I will determine the issues listed above as follows: - **Whether this Court has jurisdiction to enlarge the time within which the Client may object to the taxation.** 1. The starting point is Paragraph 11 of the Advocates (Remuneration) Order, which lays down a sequential procedure for a party dissatisfied with a decision of a taxing officer. Under Paragraph 11(1), such a party must, within fourteen days of the decision, give written notice to the taxing officer of the items objected to. Under Paragraph 11(2), the taxing officer records and forwards the reasons for the decision, and the objector may thereafter, within fourteen days of receipt of those reasons, file a reference to a judge by chamber summons. Crucially, Paragraph 11(4) confers upon the High Court a discretion, by order, to enlarge the time fixed by subparagraphs (1) or (2) for the taking of any step, and that discretion may be exercised whether or not the application is made before the expiration of the time fixed. 2. My understanding of the said provision is indeed in concurrence with the holding in **Ahmed Nassir v National Bank of Kenya Ltd, [2006] E.A.** The Court held that: - *“Although rule 11(1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the Hon. Taxing officer should do so within 14 days, after the said decision and thereafter le his reference within 14 days from the date of receipt of the reasons, where the reasons for the taxation on the disputed items in the bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of sub-rule(2) of rule 11 of the Advocates Remuneration Order demands so. The said rule was not intended to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling.”* 1. It follows that the Court is clothed with jurisdiction to enlarge time notwithstanding the lapse of the fourteen-day period. The Advocate's contention that the timelines are “mandatory” is only partly correct: they are mandatory in the sense that they bind a party who takes no step to be relieved of them, but they are not immutable, for Paragraph 11(4) expressly preserves the Court's power to enlarge them. The first issue is accordingly answered in the affirmative. **Whether the Client has established sufficient cause to warrant the exercise of that discretion in its favour***.* 1. Jurisdiction to enlarge time is one thing; its exercise is another. The discretion is neither automatic nor to be exercised for the mere asking. The governing principles are now well settled. In **Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR,** the Supreme Court held that; *Extension of time is not a right of a party but an equitable remedy available only to a deserving party at the discretion of the Court; that the party seeking it must lay a basis to the satisfaction of the Court and explain the delay; that the discretion is exercised on a case-by-case basis; and that the Court will weigh, among other things, the length of and reasons for the delay, whether an arguable case is disclosed, and the prejudice, if any, to the opposite party.* 1. In the case of [**Murage Nyawira Gladys v Lydia Mutinda Mutunga**](https://kenyalaw.org/akn/ke/judgment/kehc/2022/2191)**[2022] eKLR**, the Court cited with approval the decision in [**FWNM v SMM**](https://kenyalaw.org/akn/ke/judgment/kehc/2019/3000)**[2019] eKLR** where it was held as follows: - *I again repeat the question what does the phrase “sufficient cause” mean. The Supreme Court of India in the case of P****ARIMAL v VEENA*** *observed that;* *“Sufficient cause” is an expression which has been used in a large number of statutes. The meaning of the word “sufficient” is “adequate” or “enough” in as much as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides platitude which when the act done suffices to accomplish the purposes intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, “sufficient cause” means that a party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been “not acting diligently” or “remaining inactive.”* *However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously.* 1. In considering an application for extension of time, the Court will normally consider the period for the delay, the reasons for the delay, the prejudice that may likely be suffered by the opposite party and if the matter touches on public interest. In the case of [**Edith Gichungu Koine v Stephen Njagi Thoithi**](https://kenyalaw.org/akn/ke/judgment/keca/2014/485)**[2014] eKLR**, the Court of Appeal discussed the factors to be considered in an application for extension of time and held as follows:- *Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court, including but not limited to, the period of delay, the degree of prejudice to the Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.* 1. Applying these principles, I make the following findings. 2. **On the length of the delay.** The ruling was delivered on 31st March 2026. The fourteen-day period under Paragraph 11(1) therefore expired in or about mid-April 2026. The application was filed on 23rd April 2026. The delay beyond the statutory period is, on any reckoning, a matter of days rather than weeks or months. It is not inordinate. The Advocate's description of the application as coming “almost one month after” the ruling, while arithmetically defensible if measured from the date of the ruling, tends to overstate the position when measured from the true point of default, namely the expiry of the objection period. 3. **On the reason for the delay.** The Client's explanation that it required time to “keenly review the ruling” is, I accept, less than compelling. Standing alone, the need to read and digest a ruling is something incumbent on every dissatisfied litigant and does not ordinarily, of itself, constitute sufficient cause. Were the delay substantial, that explanation would not carry the day. But sufficient cause is not assessed in a vacuum or by any single factor. Where the delay is short and an arguable matter of substance is disclosed, a Court will not lightly shut a party out on the strength of an imperfect explanation alone. 4. **On the existence of an arguable case.** This, in my view, is the decisive consideration. On the face of the ruling, the taxing officer expressly taxed off Kshs. 40,000 from the sum claimed, which the affidavit puts at Kshs. 174,832. The arithmetical product of that deduction is Kshs. 134,832; yet the Bill is certified as taxed at Kshs. 154,832. There is thus, ex facie the ruling, an unexplained discrepancy of some Kshs. 20,000. I make no finding as to what the correct figure ought ultimately to be that is not the office of this application and I do not have the itemized Bill of Costs before me to interrogate the computation. It suffices, for present purposes, to hold that the point raised is neither frivolous nor fanciful; it is arguable and it deserves ventilation in the proper forum. A Court leans towards determining an arguable grievance on its merits rather than extinguishing it on a limitation technicality, particularly where doing so would allow an apparently erroneous sum to crystallize into an enforceable certificate. That approach is consonant with the overriding objective in Sections 1A and 1B of the Civil Procedure Act. 5. **On prejudice.** I am not persuaded that the Advocate will suffer any prejudice incapable of compensation in costs. Enlarging time does not extinguish the Certificate of Taxation, if issued; it merely defers its enforcement pending the ordered process, and the Advocate retains every right it presently enjoys. Against this, the prejudice to the Client of being held to a sum said to be arithmetically wrong is real and, potentially, irreversible upon execution. 6. **On the allegation of afterthought and abuse of process.** The chronology urged by the Advocate that the Client stirred only after the Advocate had moved to convert the Certificate into a decree is not lost on me. But the existence of the alleged error is wholly independent of the timing of the application; the discrepancy on the face of the ruling did not come into being because of the Advocate's application of 13th April 2026. A party may legitimately be spurred to vindicate a genuine grievance by the steps of its opponent without thereby abusing the process of the Court. Given the short delay and the arguable point disclosed, I am not satisfied that this application is a mere stratagem to delay. That said, the Court is alive to the risk that the objection and reference machinery may be deployed to stall enforcement and the directions below are framed with strict timelines to guard against that mischief. 7. Weighing all these matters, and exercising the discretion conferred by Paragraph 11(4), I am satisfied that the justice of the case favours granting the Client leave to object to the taxation out of time. The second issue is answered accordingly. **Whether the substantive prayers seeking correction, variation and revocation of the taxed Bill and Certificate (prayers 4, 5 and 6) are properly before the Court in this application.** 1. It is one thing to grant leave to object out of time; it is quite another to be asked, in the same breath and in the same application, to correct the taxed figure, deduct a further sum, and revoke and re-issue the Certificate. On this the Advocate's objection is, in my judgment, well taken. 2. Paragraph 11 prescribes a defined sequence: (a) notice of objection; (b) recording of reasons by the taxing officer; and (c), if the objector remains dissatisfied, a reference to a judge. The Client stands at the very threshold of that process, the stage of the notice of objection. No reasons on the disputed items have yet been formally recorded and forwarded under Paragraph 11(2), and no reference is on the record. The Court, sitting on a reference, interferes with the exercise of a taxing officer's discretion only on established grounds principally an error of principle and does not tax afresh: see ***First American Bank of Kenya Ltd v Gulab P. Shah & 2 Others [2002] 1 EA 65; Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd (No. 3) [1972] EA 162***; and the principles distilled in ***Wachira Karani v Bildad Wachira [2016] eKLR***. To pronounce upon the correct taxed sum now would be to determine a reference that has not been filed, upon a record that is incomplete, and without the itemized Bill of Costs before the Court. 3. The incompleteness of the record is not merely formal. I observe, for instance, that the ruling annexed as “NN-1” makes no mention whatsoever of any disallowance of Kshs. 5,000 in disbursements; it speaks only of Kshs. 40,000 taxed off in respect of unproven travelling. Prayer 5 therefore rests on a premise not borne out on the face of the ruling. This very illustration demonstrates why questions of quantum cannot be resolved summarily in a leave application and must instead be canvassed through the structured objection-and-reference process, where the Bill, the reasons and the arguments can properly be laid before the Court. 4. I would add that, to the extent the Client's real complaint is a manifest arithmetical or clerical slip on the face of the ruling, such an error is precisely the kind that may be raised in the notice of objection and readily addressed by the taxing officer, or, in an appropriate case, corrected under the slip rule preserved by Section 99 of the Civil Procedure Act. The avenue exists; it has simply not yet been properly travelled. 5. For these reasons, prayers 4, 5 and 6 are premature and procedurally incompetent as framed, and I decline them but I do so without prejudice to the Client's right to raise every one of those matters in the notice of objection and any ensuing reference. 6. In the result and doing the best I can to reconcile the demands of procedural regularity with those of substantive justice under Article 159(2)(d) of the Constitution, the Client's application dated 9th April 2026 and filed on 23rd April 2026 is allowed in part, on the following terms: - 7. *Leave is granted to the Client to file and serve its Notice of Objection to the decision of the taxing officer delivered on 31st March 2026 out of time. The Notice of Objection annexed to the supporting affidavit as “NN-2” shall be deemed duly filed and served upon payment of the requisite fees, if any, provided the same is regularized within fourteen (14) days of the date of this Ruling.* 8. *Upon such service, the taxing officer shall proceed, in accordance with Paragraph 11(2) of the Advocates (Remuneration) Order, to record and forward to the Client the reasons for the decision on the items objected to; and the Client shall thereafter be at liberty, if still aggrieved, to file a reference within the time prescribed by that Paragraph.* 9. *Prayers 4, 5 and 6 of the application are declined as premature and procedurally incompetent, without prejudice to the Client's right to canvass the said matters in the notice of objection and any reference filed pursuant to Paragraph 11 of the Advocates (Remuneration) Order.* 10. *For the orderly conduct of the proceedings, the file shall be mentioned on a date to be taken before the Deputy Registrar for directions on the Advocate's pending application dated 13th April 2026 (for entry of judgment upon the Certificate of Taxation) in light of this Ruling, it being desirable that the enforcement of the Certificate abide the outcome of the objection process now sanctioned.* 11. *Given the divided success of the application, the Client having required the Court's indulgence on account of its own default, while the Advocate's opposition has only partly succeeded each party shall bear its own costs of the application.* 12. Orders accordingly. **DATED, SIGNED AND DELIVERED VIA CTS & EMAILS THIS 7TH DAY OF AUGUST 2026**  **………………………………………** **R. NYAKUNDI** **JUDGE**