Sahel Freighters Ltd & another v Kanji & 2 others (All practising as AB Patel & Patel LLP, Advocates) (Miscellaneous Application E074 of 2025) [2026] KEHC 12868 (KLR) (14 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MOMBASA** **MISCELLANEOUS APPLICATION NO. E074 OF 2025** **SAHEL FREIGHTERS LIMITED 1ST APPLICANT** **SAHEL CARRIERS LIMITED 2ND APPLICANT** **-VERSUS-** **VIKRAM CHOTALAL KANJI 1ST RESPONDENT** **SANJEEV KHAGRAM 2ND RESPONDENT** **FAIYAZ ANJARWALLA 3RD RESPONDENT** *(All practising as A. B. Patel & Patel LLP, Advocates)* **RULING** **The application** 1. Before the Court is the Applicants' Chamber Summons dated 10th March 2025, expressed to be brought under Paragraph 11 of the Advocates (Remuneration) Order, sections 3A and 95 of the Civil Procedure Act (Cap 21), Order 42 rule 6 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. The Applicants seek the following substantive orders: (a) That execution of the ruling on taxation delivered on 11th December 2024, and all consequential proceedings arising therefrom, including the Certificate of Taxation dated 30th January 2025 by which the Respondents/Advocates were awarded Kshs. 391,647.00, be stayed pending the hearing and determination of this application; (b) That the Court be pleased to extend time and grant the Applicants leave to file their reference out of time against the decision of the Taxing Officer delivered on 11th December 2024; (c) That the Court does set aside the decision of the Taxing Officer (Hon. N. R. Akee, Deputy Registrar) delivered on 11th December 2024 awarding the Respondents/Advocates Kshs. 391,647.00; (d) That the Court do order that the Respondents/Advocates' Bill of Costs dated 18th October 2023 be filed afresh in the correct jurisdiction to be taxed before a different Taxing Officer; and (e) That the costs of this application be provided for. 2. The application is supported by the affidavit of Habib Hakem sworn on 10th March 2025, a director of the Applicant companies. It is opposed through the Replying Affidavit of Faiyaz Anjarwalla, the 3rd Respondent and a partner in the respondent firm, sworn on 21st August 2025. By consent, and on the Court's direction, the application was canvassed by way of written submissions, which both parties have filed and which I have carefully considered together with the authorities cited. **Background** 3. The dispute has its origin in Nairobi Milimani CMCC No. 1666 of 2018, *Harley's Limited v Sahel Freighters & Sahel Carriers Limited*, in which the Applicants were sued as Defendants for special damages of Kshs. 3,687,226.00, together with costs and interest. The Respondents, a firm of advocates practising in Mombasa as A. B. Patel & Patel LLP, were retained to act for the Applicants in that suit. 4. Following that retainer, the Respondents lodged an Advocate–Client Bill of Costs dated 18th October 2023 for taxation before the Taxing Officer of this Court at Mombasa, in HC Misc. Application No. E288 of 2023. On 11th December 2024 the learned Taxing Officer delivered a ruling taxing the bill at Kshs. 391,647.00. A Certificate of Taxation dated 30th January 2025 was thereafter extracted and served upon the Applicants under cover of a demand letter dated 7th February 2025, which demanded payment of the net sum (after credit for the deposit paid) within seven days, failing which recovery proceedings were threatened. 5. The Applicants say they first learnt of the ruling only upon service of that letter and Certificate on 7th February 2025, and that they thereupon moved this Court. It is common ground that the ruling was delivered in the absence of the Applicants' counsel. **The applicants' case** 6. The Applicants advance four principal complaints. **First**, they contend that the Taxing Officer at Mombasa lacked jurisdiction to tax a bill whose parent suit was filed, and remains pending, in Nairobi. Taxation, they submit, must be undertaken in the court station where the parent file resides, so that the taxing officer may examine the record and verify the items claimed. They rely on *Invesco Assurance Co. Limited v Chigiti & Chigiti Advocates* [2018] eKLR, in which the High Court held that a taxing officer had no jurisdiction to tax bills arising from matters filed in different stations and that to sanction such a course would invite forum-shopping and “anarchy”. 7. **Second**, they contend that no notice of the delivery of the ruling was ever issued, whether for the abortive date of 6th December 2024 or for 11th December 2024, and that the failure to notify them, coupled with the extraction of a Certificate of Taxation, was calculated to defeat their right to challenge the taxation in time. They rely on *Pamwhite Limited v Karomo & another* [2023] KECA 645 (KLR) and *Ngoso General Contractors Ltd v Jacob Gichunge* [2005] eKLR for the proposition that parties are entitled to a notice of the date of delivery of a ruling, and that the absence of such notice may constitute sufficient reason to enlarge time. 8. **Third**, and consequentially, they seek enlargement of time to file their reference, urging that the delay was neither inordinate nor unexplained: it is attributable to the want of a ruling notice, the court recess between 15th December 2024 and 15th January 2025, and the festive-season closure, and that they moved promptly upon gaining knowledge. They cite *Guchu & another v Andrew & Steve Advocates* [2025] KEHC 12872 (KLR), *Kieng & another v Karemi & 5 others* [2024] KEHC 698 (KLR), and again *Pamwhite* (supra). On the objection that they never sought reasons, they answer that the ruling was itself self-contained, addressing each of the 87 items, so that a fresh demand for reasons was unnecessary: *Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board* [2005] eKLR; *Evans Thiga Gaturu Advocate v Kenya Commercial Bank Ltd* [2012] eKLR; and *Kibe v Mwangi Keng'ara & Company Advocates* [2025] KEHC 12339 (KLR). 9. **Fourth**, on the merits, they contend that the Taxing Officer erred in principle: that the instruction fee of Kshs. 250,000.00 claimed under item 1 was disproportionate to work limited to entering appearance and filing a defence (for which, they say, a deposit had already been paid); that item 2 was taxed on the wrong schedule; and that items 3 to 87 were, in large measure, unsupported, fictitious or excessive. They therefore ask that the taxation be set aside and the bill remitted to a different taxing officer in the proper jurisdiction. **The respondents' case** 10. The Respondents oppose the application on four fronts. **First**, they say there is no properly constituted reference before the Court, the Applicants having filed no notice of objection under Paragraph 11(1) of the Advocates (Remuneration) Order and having sought no reasons from the Taxing Officer. They rely on *Twiga Motors Ltd v Dalmas Otieno Onyango* [2015] eKLR, where an incompetent reference was struck out for non-compliance with Paragraph 11. 11. **Second**, they say the delay is inordinate and unexplained: some three months from the ruling and over 45 days from service of the Certificate; and that the court had, on 6th December 2024, informed the parties (through Ms. Ruqayya Essajee, who attended) that it would upload its rulings online, the cause list being too long, so that it fell to the parties to monitor the court's tracking system and to be vigilant. There being no duty on the Respondents to notify the Applicants, they invoke the maxim that equity aids the vigilant, not the indolent, and rely on *Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others* [2014] eKLR, *Kimani v Sigona Jua Kali Association* [2025] KESC 24 (KLR), *Bi-Mach Engineers Ltd v James Kahoro Mwangi* [2011] eKLR, and *County Executive of Kisumu v County Government of Kisumu* [2017] KESC 16 (KLR). 12. **Third**, on jurisdiction, they contend that an advocate–client bill arises not from the suit but from the retainer, which is a commercial contract independent of the parent matter; and that the taxing officer's jurisdiction is not circumscribed by geography. The cause of action, they say, arose in Mombasa, where the Applicants carry on business, where the deponent of the supporting affidavit resides, where the respondent firm has its office, where instructions were issued, and where the deposit was paid. They rely on *Tom Ojienda & Associates Advocates v County Government of Narok* [2021] KEHC 452 (KLR) and *Kemboy Law Advocates v Narok County Government* [2024] KEELC 13389 (KLR). 13. **Fourth**, they say the bill was properly taxed. The subject matter (Kshs. 3,687,226.00) is admitted; instruction fees are, per *Joreth Limited v Kigano & Associates* [2002] 1 EA 92, a static item earned once instructions are received, unaffected by the stage the suit reached; and disbursements of the kind impugned need not always be vouched by receipts, a reasonable global sum being permissible (*Tom Ojienda*, supra). No error of principle having been shown, they pray that the application be dismissed with costs. **Issues for determination** 14. Having considered the pleadings, the affidavits and the rival submissions, the following issues fall for determination: (a) Whether the application, and the intended reference, are competent notwithstanding the absence of a notice of objection and a request for reasons; (b) Whether the Applicants have shown sufficient cause to warrant enlargement of time within which to file their reference; (c) Whether the Taxing Officer at Mombasa had jurisdiction to tax the Advocate–Client Bill of Costs; (d) Whether a case has been made out to set aside the taxation at this stage; and (e) Whether, and on what terms, a stay of execution should issue; and how the costs of the application should be borne. **Analysis and determination** **(i) Competency of the application and the intended reference** 15. Paragraph 11 of the Advocates (Remuneration) Order prescribes the procedure for challenging a taxation. It provides, in material part: *“(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 … (4) The High Court shall have power in its discretion by order to enlarge the time fixed … for the taking of any step; such application for enlargement may be made notwithstanding that the time sought to be enlarged may have already expired.”* 16. The Respondents' competency objection, resting on *Twiga Motors* (supra), misapprehends the nature of what is presently before the Court. The Applicants do not purport to have filed a reference; they seek an order under Paragraph 11(4) enlarging the time within which to do so. That sub-paragraph expressly contemplates enlargement “notwithstanding that the time sought to be enlarged may have already expired.” A litigant who is out of time is entitled to apply for enlargement *before* filing the substantive reference; the absence of a completed reference is therefore no answer to an application of this kind. 17. As to the complaint that no notice of objection was given and no reasons sought, the settled position is that where the taxing officer's ruling is self-contained and sets out the reasons for the decision on the taxed items, an objector need not ritualistically demand fresh reasons but may proceed to a reference within fourteen days: see *National Oil Corporation Ltd v Real Energy Ltd* [2016] eKLR, *Ahmedasir Abdikadir & Co. Advocates v National Bank of Kenya* [2006] 2 EA 5, and the observations of the Court of Appeal in *Kipkorir, Titoo & Kiara Advocates* (supra) that a total failure to record reasons is itself a good ground of reference and does not preclude a competent reference. The Applicants assert, and it is not seriously controverted, that the impugned ruling addressed each of the 87 items with reasons. If that be so, a matter the Court will confirm from the ruling on the reference, the failure to lodge a separate notice of objection is not fatal, the more so when read with Article 159(2)(d) of the Constitution and the overriding objective, which enjoin the Court to prefer substantive justice over procedural technicality (*Kibe v Mwangi Keng'ara & Company Advocates*, supra). 18. I therefore hold that neither the absence of a notice of objection nor the non-solicitation of reasons defeats the present application for enlargement of time. The first issue is answered in the Applicants' favour. **(ii) Sufficient cause for enlargement of time** 19. The power to enlarge time under Paragraph 11(4) is discretionary, to be exercised judicially upon a demonstration of sufficient cause. The guiding principles are those distilled by the Supreme Court in *Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others* [2014] eKLR: that extension of time is not a right but an equitable remedy available to a deserving party; that the applicant must lay a satisfactory basis; that the discretion is exercised case by case; that the delay must be reasonably explained; that the Court will weigh any prejudice to the respondent; and that the application must be brought without undue delay. 20. The pivotal question of fact is whether the Applicants were notified of the delivery date of the ruling. The requirement of a notice of the date of delivery of a ruling or judgment not delivered *ex tempore* is fundamental and rooted in the rules of natural justice: *Ngoso General Contractors Ltd v Jacob Gichunge* (supra). The Court of Appeal in *Pamwhite Limited v Karomo* (supra) held that parties are entitled to notice of the delivery date and that, where such notice is not given, the omission may amount to sufficient reason for enlargement of time to appeal, provided the applicant moves expeditiously; and in *Kieng v Karemi* (supra) the want of a ruling notice was accepted as a satisfactory explanation even for a delay of some two years. 21. The Respondents' answer, that the court announced on 6th December 2024 that rulings would be uploaded online, does not, on the material before me, displace that entitlement. That averment is made on information relayed by Ms. Essajee, and no extract from the court's tracking system evidencing the alleged announcement has been produced. In any event, a general intimation that rulings would be uploaded is not the equivalent of a notice of the specific date of delivery. The burden of demonstrating that the Applicants had timely notice or knowledge lay on the party asserting it, and it has not been discharged. 22. The Applicants learnt of the ruling on 7th February 2025. The intervening court recess (15th December 2024 to 15th January 2025) and the festive-season closure are matters of which the Court takes notice. From knowledge on 7th February 2025 to the filing of the application, the interval, whether measured to the date the summons bears (10th March 2025) or the date the Respondents say it was filed, is of the order of a month to some six weeks, an interval occupied with obtaining the ruling, taking instructions and settling the application. The authorities relied upon by the Respondents, *Salat*, *Kimani*, *Bi-Mach Engineers* and *County Executive of Kisumu*, are distinguishable: in each, the delay was wholly or substantially unexplained; here it is explained, and adequately so. 23. Weighing these matters, I am satisfied that sufficient cause has been shown. The delay is neither inordinate nor unexplained; and the interests of justice favour a hearing of the intended reference on its merits, particularly given the arguable questions it raises. The application for enlargement of time therefore succeeds. ***(*iii) Jurisdiction of the Taxing Officer at Mombasa** 24. Because jurisdiction goes to the root and may be raised at any stage (*Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd* [1989] KLR 1; *Samuel Kamau Macharia v Kenya Commercial Bank Ltd* [2012] eKLR), I address it now, notwithstanding my conclusion on enlargement of time. 25. A distinction must be drawn between party-and-party costs, which are an incident of a suit and are taxed in the court that determined it, and an advocate–client bill, which is founded upon the retainer between advocate and client. The bill in question is of the latter character. It was not lodged within the Nairobi suit file; it was commenced as a discrete cause, HC Misc. Application No. E288 of 2023, in Mombasa. The advocate–client relationship is contractual, and the bill stands upon that independent contractual footing. (see *om Ojienda & Associates Advocates v County Government of Narok* (supra). 26. Paragraph 10 of the Advocates (Remuneration) Order designates the taxing officer as the Registrar or a Deputy Registrar of the High Court; nothing in the Order ties the taxation of an advocate–client bill to the geographical station of the parent suit. The prevailing view, which I adopt, is that the taxation jurisdiction of a deputy registrar is not circumscribed by geographical jurisdiction (see *Kemboy Law Advocates v Narok County Government* (supra)). 27. The Applicants' reliance on *Invesco Assurance Co. Limited v Chigiti & Chigiti Advocates* (supra) is, with respect, misplaced. That case concerned a single amalgamated or “block” bill covering some ninety-nine different suits filed in different stations across the country. The vice there condemned was the amalgamation of unrelated matters and the impossibility of verifying multiple files, not the mere fact that a bill was taxed in a station other than that of its parent suit. Here there is one retainer, one suit and one bill; the mischief that animated *Invesco*, forum-shopping, block bills and the attendant “anarchy”, simply does not arise. 28. Nor is the position altered by the Applicants' complaint that the Taxing Officer did not have the Nairobi file before her. That complaint goes to the sufficiency of proof of individual items, a question for the reference, and not to jurisdiction. The advocate bears the burden of proving the work claimed; items that are not proved fall to be taxed off on a reference. That, however, does not divest the Mombasa court of jurisdiction. I am satisfied that the Taxing Officer had jurisdiction to entertain and tax the bill. Prayer (d) of the summons, seeking re-filing in a different jurisdiction, accordingly fails. **Disposition** 29. For the foregoing reasons, the Applicants' application for enlargement of time to file a reference against the ruling on taxation delivered on 11th December 2024 is allowed. The Applicants shall, within fourteen (14) days of the date hereof, file and serve their reference. The costs of this application shall abide the outcome of the reference. **Orders accordingly.** **Dated, signed and published on 14 August 2026** Ngaah Jairus **JUDGE**