Nyamori v Abuya (Environment and Land Case 471 of 2015) [2026] KEELC 4943 (KLR) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC 471 OF 2015** **IN THE MATTER OF THE ADVOCATES ACT** **AND** **IN THE MATTER OF REFERENCE FROM THE RULING OF THE TAXING OFFICER OF THE ENVIRONMENT & LAND COURT AT KISUMU** **BETWEEN** **SAMUEL NYAMORI……………………………………………….... APPLICANT** **VERSUS** **FRANCIS ABUYA…………………………………………………RESPONDENT** **RULING** 1. This ruling is in respect to the Applicant’s application dated 14th November 2025 which seeks the following reliefs:- 2. **The Honourable court be pleased to enlarge time within which to file a reference out of the decision by the Taxing Officer delivered on the 09.10.2025.** 3. **The ruling by the taxing officer dated the 09.10.2025 and reasons contained therein of the Respondent’s bill of costs dated 15th April, 2025 in Kisumu ELC case No. 471 of 2015 between Samuel Nyamori versus Francis Abuya be set aside.** 4. **Pending the hearing and determination of this application this Honorable Court be pleased to order stay of execution of the ruling of respondent’s bill of costs dated 09.10.2025 arising from Kisumu ELC Case No. 471 of 2015 delivered on the 09th October, 2025.** 5. **The ruling delivered on the 09th October, 2025 on the respondent’s bill of costs dated the 15th April, 2025 be set aside and taxed afresh by this Honorable Court.** 6. **The costs of this application be provided for.** 7. The application was opposed by the Respondent vide a Replying Affidavit sworn on 11th March 2026 and pursuant to the directions issued by the court differently constituted, it was directed that the said application be canvassed by way of written submissions. 8. The Applicant in compliance to the directions issued by the court filed written submissions dated 3rd July 2026 while the Respondent filed written submissions dated 8th July 2026. 9. The Applicant’s case is that he was the plaintiff in ELC CASE NO. 471 OF 2015 against the Respondent herein. The said suit was dismissed for lack of merit and costs of the suit awarded to the Respondent. The Respondent proceeded to file their party and party bill of costs dated the 15.04.2025 in which he claimed the amount of Kshs. 2,364,315/=. The bill was taxed at Kshs. 444,421/= by the taxing master on the 09.10.2025. The said ruling was delivered in the absence of his advocates and the plaintiff only came to know of the same way later after the 14 days statutory period to object had lapsed hence the need to ask for leave of court to file out of time. He was aggrieved by the taxing master’s decision being that the same was excessive and absolutely punitive. The taxing officer erred by taxing item 1 at Kshs. 180,000/= when the value of the subject matter was unknown and ought to be taxed at Kshs. 75,000/= and consequently erred by using the same figure to tax item 2 without considering the value of the subject matter of the suit and the mode of calculation as provided under the Advocates Remuneration Order and that the amount arrived at by the taxing officer on item 1 & 2 of the bill was too high and contrary to the Advocates Remuneration Order. 10. In his submissions, it was argued that in light of the Supreme Court decision of **Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others (2014) eKLR**, present case is a matter fit for the court to exercise its discretion to extend time. 11. It was submitted that while the Applicant participated in the taxation proceedings, the ruling was delivered in his absence and he only came to know of the same way later when the statutory period within which to file the reference had lapsed hence the mistake of the advocate should not be vested upon the client. It was also argued that the delay is not inordinate since the Applicant filed the application immediately he realized that the ruling had been delivered on the portal. The instant application was filed within 18 days upon the said discovery. 12. Citing the case of **Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet (2018) eKLR**, it was submitted that there is no maximum or minimum period of delay set out under the law save that the delay must be reasonable and plausible. 13. On the degree of prejudice likely to be caused by the Respondent, it was submitted that the Respondent will not be prejudiced if the application is allowed as he can be compensated by way of damages and the court should lean on the merit of the case rather than procedural technicalities. 14. As to whether the taxing officer erred in awarding the award of Kshs. 180,000/- as instruction fees and as parties are the same is excessive and without any legal bearing, it was submitted that the subject matter of the suit is unknown which is to be taxed at Kshs. 75,000/= pursuant to the provisions of the Advocates Remuneration Order, 2014 which would consequently alter the getting up fees. Reliance was placed on the Court of Appeal case in **Joreth Limited vs Kigano & Associates Civil Appeal No. 66 of 1999.** 15. The court was urged to set aside the decision of the taxing master and order afresh taxation. 16. The Respondent in opposing the application averred that the Ruling of the Taxing Officer was delivered on 9th October 2025 and pursuant to **Rule 11 (2) of the Advocates (Remuneration) Order 2014**, any party aggrieved by a decision of the Taxing Officer is required to file a Reference within 14 days from the date. The 14 days in the instant application expired on or about 23rd October 2025, a delay of approximately 18 days. No valid explanation or good cause for the inordinate delay has been offered. 17. It was averred that the ruling date for 9th October 2025 was set in the presence of all the parties but Counsel for the Applicant chose not to attend. 18. In respect to the taxed bill, it was averred that the Taxing Officer clearly considered the same and applied the Supreme Court’s guidance in **Kenya Airports Authority vs Otieno Ragot & Company Advocates (Petition E011 of 2023) {2024} KESC 44 (KLR)**. The initial bill was Kshs. 2,364,315/- but after vigorous and careful taxation, the same was taxed at Kshs. 444,421/-. The Applicant’s proposed figure of Kshs. 75,000/- for instruction fees would be manifestly unjust and completely low. 19. It was also argued that the reference is time barred and lacks merit. The Respondent will suffer prejudice if the application is granted as it will further delay recovery of costs lawfully taxed after a 16-year long litigation. 20. In his submissions, three issues were outlined for consideration by the court. These were: Whether the Applicant has established sufficient cause for enlargement of time, whether the Applicant has demonstrated any error of principle warranting interference with the taxation and whether the taxed bill of costs ought to be objected for fresh taxation. 21. On the first issue, it was submitted that **Rule 11 (3) and (4) of the Advocate’s Remuneration Order** provides that a party objecting to taxation within 14 days after the decision given notice in writing to the taxing officer specifying the items objected to. 22. It was also submitted that while the High Court retains the discretion to extend time, the same is not automatic. The Applicant has not demonstrated what efforts were made to follow up the matter from application was not made promptly and the Applicant has failed to place before this court sufficient material to warrant exercise of the Court’s discretion. 23. On his second issue, it was submitted that the taxing master did not commit any error of principle or legal error. Citing the cases of **First American Bank of Kenya Ltd vs Shah & Others [2002] 1 EA 64, Kipkorir, Titoo & Kiara Advocates vs Deposit Protection Fund Board (2005) eKLR and Joreth Ltd vs Kigano & Associates (2002) 1 EA 92**, it was submitted that the Applicant has failed to demonstrate any error and the decision of the taxing officer should not be interfered with. 24. On his third issue, it was argued that there is no basis for setting aside the taxation. The Applicant has not demonstrated any jurisdictional error, misdirection in law or error of principle capable of impeaching that taxation. Reference was made to the case of **Premchand Raichand Ltd & Another vs Quarry Services of East Africa Ltd & Another [1972] EA 162.** 25. The court was urged to decline to extend time and dismiss the reference with costs. **Analysis and determination** 1. Having considered the application, rival affidavits and written submissions filed by the parties, the following issues are for determination: - 2. **Whether the Applicant has made out a case for enlargement of time to the reference out of the decision of the Taxing Officer delivered on the 9th October 2025.** 3. **Whether the ruling of the Taxing Officer dated 9th October 2025 ought to be set aside.** 4. **What orders should issue and who should bear the costs of the application.** **Whether the Applicant has made out a case for enlargement of time to file the reference out of time** 1. It is common ground that the Ruling of the Taxing Officer on the Respondent’s Bill of Costs dated 15th April 2025 was delivered on 9th October 2025. **Rule 11 (1) and (2) of the Advocates Remuneration Order** obligates a party who objects to a decision of a taxing officer to give notice in writing to the taxing officer of the items of taxation objected to within 14 days of the decision and thereafter to file the reference. The time within which to lodge the reference therefore lapsed on or about 23rd October 2025. The present application is dated 14th November 2025, approximately three weeks after the lapse of the prescribed period. The threshold question is whether the Applicant has laid a sufficient basis for the enlargement of that time. 2. The principles that guide the exercise of the court’s discretion whether to enlarge time were authoritatively settled by the Supreme Court in **Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others (2014) eKLR**, which was relied upon by the Applicant. 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 party seeking the extension bears the burden of laying a basis to the satisfaction of the court; the delay must be explained satisfactorily; the court should consider whether the delay is inordinate as well as the prejudice, if any, that the opposite party stands to suffer; and each case falls to be determined on its own facts. 3. The Applicant’s explanation is that the ruling was delivered in the absence of his advocates and that he only became aware of it belatedly through the court’s electronic portal, whereupon he moved the court within 18 days of that discovery. The Respondent counters that the delivery date was taken in the presence of both parties and that counsel for the Applicant simply elected not to attend. Even taking the Respondent’s version at its highest, the default in attending the delivery of the ruling and in promptly following up on its outcome was that of counsel and not of the litigant personally. It has long been accepted that the mistakes, lapses or oversights of counsel ought not, in every instance, to be visited upon an innocent litigant. See **Belinda Murai & 9 Others vs Amos Wainaina (1979) eKLR** and **Philip Chemwolo & Another vs Augustine Kubende (1986) eKLR**. 4. As was observed in **Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet (2018) eKLR**, cited by the Applicant, the law does not set out any minimum or maximum period of delay; what commends an application for enlargement of time is whether the delay is reasonable and has been plausibly explained. The delay in this matter, in the order of three weeks, cannot by any measure be termed inordinate. The application was brought with reasonable promptitude upon the Applicant’s discovery that the ruling had been delivered. As to prejudice, the Respondent’s legitimate anxiety over further delay in recovering costs taxed after protracted litigation is one that is capable of amelioration through an expeditious determination of the challenge itself. It does not outweigh the Applicant’s entitlement to be heard on the propriety of the taxation, in keeping with **Article 159 (2) (d) of the Constitution** which enjoins courts to administer justice without undue regard to procedural technicalities. 5. In the circumstances, I am satisfied that the Applicant has established sufficient cause for the enlargement of time and I exercise my discretion in his favour. Further, since both parties have fully ventilated the merits of the intended reference in their rival affidavits and written submissions, and the application itself carries the substantive prayers that the taxation be set aside and undertaken afresh, it would serve no useful purpose, and would only occasion further delay and expense, to require a separate reference to be filed and re-argued. I shall accordingly proceed to determine the challenge to the taxation on its merits. **Whether the Ruling of the Taxing Officer delivered on 9th October 2025 ought to be set aside** 1. The principles upon which a judge will interfere with the decision of a taxing officer are well settled. In **First American Bank of Kenya Ltd vs Shah & Others [2002] 1 EA 64**, it was restated that the court will not interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle, and that the quantum of costs is a matter squarely within the discretion of the taxing officer. In the same vein, in **Premchand Raichand Ltd & Another vs Quarry Services of East Africa Ltd & Another [1972] EA 162**, the court underscored that while costs ought not to be permitted to rise to a level that impedes access to justice, a successful litigant is entitled to fair reimbursement for the costs he has incurred, and the court will not interfere with the assessment of a taxing officer merely because it would itself have arrived at a somewhat different figure. The decision in **Kipkorir, Titoo & Kiara Advocates vs Deposit Protection Fund Board (2005) eKLR**, cited by the Respondent, is to similar effect: a reference is not an avenue for re-taxation of quantum at large. 2. The Applicant’s grievance is confined to items 1 and 2 of the Bill of Costs, namely the instruction fee taxed at Kshs. 180,000/= and the consequential getting up fee. His contention is that since the value of the subject matter of the suit was unknown, the instruction fee ought to have been taxed at Kshs. 75,000/= under the applicable schedule of the **Advocates Remuneration Order, 2014**, with a corresponding adjustment to the getting up fee. 3. In **Joreth Limited vs Kigano & Associates [2002] 1 EA 92**, the Court of Appeal held that the value of the subject matter for purposes of assessing the instruction fee is to be determined from the pleadings, the judgment or the settlement, if the same be discernible therefrom; and that where the value is not so ascertainable, the taxing officer is entitled to exercise discretion in assessing such instruction fee as is considered just, taking into account, amongst other things, the nature and the importance of the cause or matter, the interest of the parties, the general conduct of the proceedings and any direction by the trial judge. 4. The Applicant’s argument therefore rests on a misapprehension of the law. Where the value of the subject matter cannot be ascertained, the Remuneration Order does not command the taxing officer to award the prescribed minimum. The prescribed figure is a floor and not a ceiling; the officer is clothed with a discretion to award such reasonable sum, above that minimum, as the circumstances identified in **Joreth (supra)** may warrant. An unascertainable value is accordingly not a synonym for the minimum fee, and no error of principle is disclosed merely because the officer assessed the instruction fee at a figure above it. 5. Turning to the assessment itself, the suit was instituted in the year 2015 and was contested land litigation between the parties which was prosecuted to full hearing before it was dismissed with costs to the Respondent. The Taxing Officer was confronted with a bill presented at Kshs. 2,364,315/= which, upon taxation, was substantially reduced to Kshs. 444,421/=, a reduction of over eighty per cent. That drastic pruning is itself demonstrative of the scrutiny that the officer applied to the bill, and the Replying Affidavit discloses that the officer was guided by the Supreme Court’s decision in **Kenya Airports Authority vs Otieno Ragot & Company Advocates (Petition E011 of 2023) [2024] KESC 44 (KLR)**. In litigation of that nature and duration, an instruction fee of Kshs. 180,000/= cannot be characterised as so manifestly excessive as to betray an error of principle. Beyond asserting that a lower figure was warranted, the Applicant has not identified any principle that the Taxing Officer misapplied. What is presented is, in substance, an invitation to this court to interfere with quantum simpliciter. That invitation must be declined. 6. The challenge to item 2 of the bill fares no better. The getting up fee is consequential upon, and calculated by reference to, the instruction fee. Since the assessment of the instruction fee has been upheld, the foundation of the complaint against the getting up fee falls away. 7. The upshot is that the Applicant has failed to demonstrate any error of principle, misdirection in law or manifest excess in the taxation warranting the interference of this court. The prayer to set aside the Ruling of the Taxing Officer delivered on 9th October 2025 and to have the bill taxed afresh is therefore without merit. **What orders should issue and who should bear the costs of the application** 1. On costs, it is trite that costs follow the event pursuant to **Section 27 of the Civil Procedure Act**. Although the Applicant has succeeded in obtaining the enlargement of time, the substantive challenge to the taxation, which was the heart of the application, has failed. The Respondent has therefore substantially succeeded and is entitled to the costs of the application. 2. In the end, the Notice of Motion dated 14th November 2025 is determined in the following terms: - 3. **The prayer for enlargement of time is allowed. Time is hereby enlarged and the Applicant’s reference against the Ruling of the Taxing Officer delivered on 9th October 2025 is deemed as duly and properly filed.** 4. **The reference is hereby dismissed. The Ruling of the Taxing Officer delivered on 9th October 2025 taxing the Respondent’s Bill of Costs dated 15th April 2025 at Kshs. 444,421/= is upheld.** 5. **Any interim order of stay of execution is hereby discharged.** 6. **The costs of the application are awarded to the Respondent assessed at Ksh 15,000.00** **DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 30TH DAY OF JULY 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:-** **Ms. Wagumba for the Applicant.** **Mr. Mwamu S.C. for the Respondent.** **Court Assistant: Joanne Omondi.**