https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1519

Mbogo v Nigel Ouma Mwallo t/a Owiti Mwallo Odhiambo & Associates (Employment and Labour Relations Miscellaneous E046 of 2025) [2026] KEELRC 1519 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1519 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Employment and Labour Relations Miscellaneous E046 of 2025 AN Mwaure, J June 4, 2026 Between Tabitha Wambui Mbogo Applicant and Nigel Ouma Mwallo t/a Owiti Mwallo Odhiambo & Associates Respondent Ruling 1.The Applicant filed Chamber Summons dated 7th August 2025 under Certificate of Urgency seeking the following orders that:1.Spent.2.There be stay of execution of the taxing officer’s decision dated 2nd July 2025 pending the hearing and determination of the instant application.3.The Honourable court be pleased to enlarge time for filing the reference application herein.4.The Honourable court be pleased to review, vary and or set aside the ruling by Hon. K. Kibellion, deputy registrar, delivered on 2nd July 2025 on the taxation of the Respondent’s advocate-client bill of costs dated 25th February 2025 as relates to items 1,6,7 and 9 on the bill of costs.5.In the alternative, the Respondent’s bill of costs be remitted back for taxation before another taxing officer.6.Costs of this appeal be provided for. 2.The application is brought under Article 159 of the Constitution, sections 1A and 3A of the Civil Procedure Act and paragraph 11(1) & (4) of the Advocates Remuneration Order and all other enabling provisions of the law. Applicant’s case 3.The application is supported by the affidavit of Applicant dated the same date as the application. 4.The Applicant avers that the Taxing Officer, Hon. K. Kibellion, delivered a ruling on 2nd July 2025, taxing the Advocate–Client Bill of Costs dated 25th February 2025 at Kshs.90,450/=. 5.Pursuant to Rules 11 and 12 of the Advocates Remuneration Order, the Applicant avers that her advocates on record wrote a letter dated 11th July 2025, formally notifying the Deputy Registrar of their objection to items 1, 6, 7 and 9 of the taxation and requesting reasons for the decision. The reasons were subsequently supplied via the Court Tracking System on 23rd July 2025. 6.The Applicant avers that her advocates on record discovered the supply of reasons for taxation on 7th August 2025, one day after the expiry of the 14‑day period for filing a reference. Consequently, the Applicant sought enlargement of time to file the reference. 7.The Applicant avers that the one‑day delay is minor and excusable, was not caused by any fault on her part, and that she should not suffer prejudice as an innocent litigant. 8.The Applicant therefore urges the Honourable Court to allow the application and consider it on its merits in the interest of justice. Respondent’s replying affidavit 9.The Respondent opposed the application vide a replying affidavit sworn by Nigel Ouma Mwallo, the Respondent’s advocate, dated 11th February 2026. 10.The Respondent avers that he acted for the Applicant, in Nakuru ELRC Misc. No. E032 of 2024 Tabitha Wambui Mbogo vs Bufflock Investments Limited upon instructions issued on 24th October 2024. 11.The Respondent avers that he rendered professional legal services until the Applicant voluntarily terminated his representation by filing a Notice to Act in Person on 25th January 2025, after which he ceased acting in the matter. 12.The Respondent further avers that although the suit was later compromised and payment made to the Applicant, the work he had done prior to termination substantially advanced the claim and contributed to its resolution. 13.Following the termination of his services, the Respondent avers that he filed an Advocate–Client Bill of Costs dated 25th February 2025, which was duly taxed on 2nd July 2025 at Kshs.90,450/=. 14.The Respondent avers that his services were duly rendered, the taxation was properly conducted, and the Applicant’s current application lacks merit and should be dismissed with costs. 15.Parties canvassed the application by way of written submissions. Applicant’s submissions 16.The Applicant came up with two issues for determination being the enlargement of time and the review of taxation of Advocate/Party bill of costs. 17.On enlargement of time, the Applicant relied on Paragraph 11(4) of the Advocates Remuneration Order, which expressly empowers the court to extend time even after expiry. The Applicant argued that the delay was only one day, occasioned by the supply of reasons via the Court Tracking System without notice. Reliance is placed on the Supreme Court case in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), the Applicant submitted that extension of time is an equitable remedy, dependent on satisfactory explanation, and that denying enlargement in the face of such minimal delay would defeat substantive justice. 18.On the taxation, the Applicant contended that the Taxing Officer erred in principle in taxing items 1, 6, 7 and 9. With respect to item 1 on instruction fees, the Applicant argued that the lower court matter was a miscellaneous application, not a substantive suit, and therefore the award of Kshs. 65,000/= was manifestly excessive and contrary to Schedule 7 of the Advocates Remuneration Order, which prescribes modest fees for applications. On items 6 and 7 on court attendances, the Applicant submitted that she had already filed a Notice to Act in Person and withdrawn the suit on 25th January 2025, hence the Respondent’s counsel had no subsisting retainer to justify attendances on 27th January 2025 and 5th February 2025. On item 9 on drawing costs, the Applicant argued that Schedule 7 does not contemplate separate charges for drawing claims in miscellaneous applications, and the allowance of such costs was therefore erroneous. 19.To support these arguments, the Applicant relied on the case of Premchand Raichand Ltd v Quarry Services of East Africa Ltd [1972] EA 162, which laid down the principle that costs must not be so high as to hinder access to justice nor so low as to amount to unfair compensation; and First American Bank of Kenya Ltd v Shah & 2 Others [2002] KEHC 1277 (KLR), which affirmed that judicial interference is warranted where a taxing officer misapprehends the applicable principles. 20.In conclusion, the Applicant urged this Honourable Court to find that the one‑day delay is excusable and sufficiently explained, and that the taxation of items 1, 6, 7 and 9 was founded on errors of principle, warranting this court’s intervention to enlarge time and review the impugned taxation. Respondent’s submissions 21.The Respondent submitted that the procedure for challenging taxation is governed by Paragraph 11 of the Advocates Remuneration Order, which requires an objection within 14 days of the decision and a reference within fourteen 14 days of receipt of reasons. The discretion to enlarge time is not automatic and must be exercised judiciously. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] eKLR, the Court of Appeal held that the court considers the length of delay, reason for delay, chances of success, and prejudice to the respondent. Applying these principles, the Respondent argues that the Applicant’s one‑day delay was occasioned by indolence, no credible explanation was given for failure to monitor the Court Tracking System, and the intended reference raises no arguable issue. 22.Further, reliance is placed on Evans Thiga Gaturu, Advocate v Kenya Commercial Bank Limited [2012] KEHC 4274 (KLR), where the court cited the case of Nyamogo & Nyamogo Advocates v Kenya Bus Services Ltd HCMA No. 587 of 2004, which emphasized that reasons are essential only to show whether the taxing officer erred in principle, and where reasons are contained in the ruling itself, a reference must be filed within fourteen days of the ruling. Similarly, in Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd (No. 2) [2006] 1 EA 5, the Court held that requesting further reasons is unnecessary where the ruling is reasoned. 23.On whether the taxing officer erred in principle, the Respondent relied on the case of Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] KECA 325 (KLR), and First American Bank of Kenya Ltd v Shah & Others(supra), which held that interference is only warranted where costs are manifestly excessive or based on wrong principles. 24.The Respondent maintains that the taxation of items 1, 6, 7 and 9 was properly conducted, discretion was exercised correctly, and no error of principle was demonstrated. Reliance is also placed on M/s Lubuleliah & Associates Advocates v N K Brothers Limited [2014] KEHC 7393 (KLR), affirming that mere dissatisfaction with the amount taxed does not justify interference. 25.Finally, the Respondent submitted that the Applicant’s conduct, including filing the application on 7th August 2025 but serving it only on 4th February 2026, shows an intention to delay payment of lawful professional fees. Meanwhile, the Respondent has filed an application under section 51(2) of the Advocates Act seeking adoption of the certificate of costs as a judgment. The certificate remains valid and enforceable. 26.Accordingly, the Respondent prays that the Chamber Summons dated 7th August 2025 be dismissed with costs, the taxation upheld, and the certificate of costs confirmed. Analysis and determination 27.The court has considered the application, supporting affidavit, replying affidavit and the submissions on record; the issue for determination is whether the taxing master erred in awarding advocate/client bill at Kshs.90,450/= 28.The court reiterates paragraph 11 of the Advocates Remuneration Order as stated in the earlier part of the ruling, which provides as follows…“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.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, which shall be served on all the parties concerned, setting out the grounds of his objection.Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far 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.” 29.In Salat v Independent Electoral and Boundaries Commission & 7 Others(supra) where the Supreme Court held as follows:“1.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;SUBPARA 2.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;5.Whether there will be any prejudice suffered by the respondents if the extension is granted;6.Whether the application has been brought without undue delay; and7.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 30.In this instant case, the Applicant seeks enlargement of time to file a reference against the ruling of Hon. K. Kibellion delivered on 2nd July 2025 in respect of the Respondent’s Advocate–Client Bill of Costs. The Applicant applied for reasons of the ruling, which were supplied on 7th August 2025, after the lapse of the statutory fourteen days. The Respondent, on his part, avers that the Applicant duly instructed him to act in Nakuru ELRC Misc. No. E032 of 2024 Tabitha Wambui Mbogo v Bufflock Investments Limited on 24th October 2024, and that he rendered professional legal services until the Applicant voluntarily terminated his representation by filing a Notice to Act in Person on 25th January 2025, after which he ceased acting in the matter. The Respondent maintains that although the suit was later compromised and payment made to the Applicant, the work he had undertaken prior to termination substantially advanced the claim and contributed to its resolution. Following termination, he filed an Advocate–Client Bill of Costs dated 25th February 2025, which was duly taxed on 2nd July 2025 at Kshs.90,450/=, and he asserts that his services were properly rendered and the taxation lawfully conducted. 31.The Ruling by the Taxing officer was delivered on 2nd July 2025 and the reasons for reference was apparently given one day before the application was filed on 7th August 2025. The Respondent in his submissions says the Applicant was indolent to have filed the reference out of time. 32.The court however agrees with the Applicant that he was not indolent and the delay was minimal and the explanation she gave is acceptable and is reasonable. 33.The Respondent says as a result of representing the Applicant initially, the case was compromised and settled in her favour. However, the court persuaded by several case laws inter alia Nicholas Kiptoo Arap Korir Salat -VS- IEBC & 7 Others where the court held:- “extension of time is an equitable remedy that lies within the discretion of the court and that a satisfactory explanation for delay is the key consideration.” 34.The items that the Applicant is challenging are also worthy of reconsideration. The Applicant says her case was not a substantive claim but was a mere miscellaneous application. The award of Kshs.65,000/= should therefore be reconsidered. The fact that she says the attendance fees were also awarded after she had filed a Notice to act for herself are worthy also to be reconsidered by the Taxing Master. 35.The court therefore finds the Applicant, being dissatisfied with the ruling of the Taxing Officer, is entitled under Paragraph 11 of the Advocates Remuneration Order to pursue a reference. To deny her the opportunity to file such a reference would amount to an infringement of her right to challenge the taxation and seek redress before this Honourable Court. Accordingly, the court finds that the Applicant’s right of appeal against the ruling ought to be preserved in the interest of justice. 36.In light of the foregoing, the court finds the application dated 7th August 2025 has merit, and it is allowed as prayed on the following conditions: -a.The Applicant's time has been enlarged to 14 days from this date.b.The Applicant to file the reference within 14 days of delivering this ruling and serve upon the Respondent.c.The case will be allocated to a different Taxing Master as per the Applicant’s Prayers. 37.Costs of the application be in the cause.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 4TH DAY OF JUNE, 2026.ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE