https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9926

Mombasa Parents Club v Wangila and Wangila Advocates (Commercial Miscellaneous Application E017 of 2026) [2026] KEHC 9926 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEHC 9926 (KLR) Republic of Kenya In the High Court at Mombasa Commercial Miscellaneous Application E017 of 2026 WM Kagendo., J June 17, 2026 Between The Mombasa Parents Club Applicant and Wangila and Wangila Advocates Respondent Ruling I. Introduction 1.Before this Court is a Chamber Summons dated 1st April 2026, filed by the Applicant, pursuant to Rules 16 and 17 of the High Court (Organisation and Administration) (General) Rules, 2016, Paragraph 11(4) of the Advocates (Remuneration) Order, 2014 (hereinafter "the ARO"), Order 40, Rules 1 and 2 of the Civil Procedure Rules, and Sections 1A, 1B, and 3A of the Civil Procedure Act. The Applicant seeks, in substance, three reliefs: first, a stay of execution of the Taxation Ruling delivered on 10th December 2025 in HCCOMMMISC No. E062 of 2024 (Wangila & Wangila Advocates v Mombasa Parents Club) and any consequential proceedings; second, leave to file an objection and Taxation Reference against that Ruling out of time under Paragraph 11(4) of the ARO; and third, that such leave, once granted, shall operate as a stay of execution pending the hearing and determination of the Reference. 2.The application is supported by the Affidavit of Ali Mohamed Salim, the Applicant's Chairman, sworn on 1st April 2026. The Respondent, Wangila & Wangila Advocates, opposes the application through the Replying Affidavit of Eugene Wangila Nyongesa sworn on 17th April 2026. Written submissions have been filed by both parties .The 3.Applicant through Sitonik Advocates (dated 25th May 2026) and by the Respondent through Wangila & Wangila Advocates (dated 19th May 2026). II. Background 4.The Respondent rendered professional legal services to the Applicant in proceedings before this Court. Upon conclusion of those services, the Respondent filed an Advocate–Client Bill of Costs dated 12th September 2024, in HCCOMMMISC No. E062 of 2024, seeking costs in the aggregate sum of Kenya Shillings One Million, Nine Hundred and Sixty-One Thousand, Nine Hundred and Twenty-Five (Kshs. 1,961,925/=). The Applicant filed a Response in Opposition and the matter was fully contested before the Honourable Deputy Registrar, Hon. Opiyo Green Odera, who served as the Taxing Officer. 5.The taxation proceedings came up before the Taxing Officer on several occasions. On 29th July 2025, in the presence of both parties, the Court fixed 26th August 2025 as the date for delivery of the Taxation Ruling. On that date, the Ruling was not ready. A further date of 23rd September 2025 was given, on which occasion the Taxing Officer stated that the Ruling would be posted on the Judiciary e-filing portal. Thereafter, no specific notice of the date of delivery was issued to either party. 6.As late as 15th October 2025, nearly eight weeks before the eventual delivery, the Respondent's own Advocates wrote to the Deputy Registrar seeking an update on the status of the pending Ruling. This letter, exhibited as Annexure M-1 to the Applicant's Supporting Affidavit, is of particular significance because it demonstrates that even the Respondent itself was without knowledge of when the Ruling would be delivered. 7.The Ruling was eventually delivered on 10th December 2025 and uploaded on the Judiciary portal, in the absence of both parties and without prior notice to either. By the Ruling, the Taxing Officer taxed the Bill of Costs at Kenya Shillings Five Hundred and Twenty-One Thousand, Five Hundred and Five (Kshs. 521,505/=). In arriving at this figure, the Taxing Officer enhanced the prescribed minimum instruction fee from Kshs. 45,000/= to Kshs. 400,000/= an increase of approximately ninefold stating that regard given to the complexity of the matter including ten interlocutory applications, contempt proceedings, and arbitration. A Certificate of Taxation was subsequently issued on 27th January 2026. 8.The Applicant posits that it only became aware of the existence of the Ruling on 6th March 2026, upon being served with the Respondent's Notice of Motion dated 29th January 2026, filed in HCCOMMMISC No. E062 of 2024, seeking to have the Certificate of Taxation adopted as a Judgment and Decree of this Court. By that date, the fourteen-day period prescribed under Paragraph 11(1) of the ARO within which to file a Notice of Objection had long lapsed. The Applicant promptly instructed Sitonik Advocates, who filed the present Chamber Summons on 1st April 2026, being twenty-six days after the date of first knowledge. 9.The Respondent disputes the Applicant's account in material respects. It contends that the parties were effectively on notice of the impending ruling because the Taxing Officer had, on 23rd September 2025, indicated that the Ruling would be posted on the Judiciary portal. The Respondent further argues that the Applicant filed no Notice of Objection with the Taxing Officer , a mandatory first step under Paragraph 11(1) of the ARO , rendering the application incompetent; that the delay of three and a half months is inordinate and unexplained; that the intended Reference raises no arguable issues; that the application constitutes an abuse of process amounting to forum shopping; and that no security for the performance of the decree has been offered. III. Issues For Determination 10.From the pleadings, affidavits, and submissions of the parties, this Court distils three issues for determination:A.Whether the Applicant has established sufficient cause to warrant enlargement of time to file a Taxation Reference out of time under Paragraph 11(4) of the Advocates (Remuneration) Order, 2014.B.Whether stay of execution should be granted pending the hearing and determination of the intended Reference. I. Analysis And Determination A. Whether sufficient cause for enlargement of time has been established 11.The legal framework within which this Court must operate is clear. Paragraph 11(1) of the ARO requires a party aggrieved by a Taxing Officer's decision to file a Notice of Objection in writing within fourteen (14) days of the decision. Paragraph 11(2) then grants the objector a further fourteen (14) days from receipt of the Taxing Officer's reasons within which to apply to a Judge by Chamber Summons. Paragraph 11(4), however, vests this Court with a specific discretionary power to enlarge those timelines, in the following terms:“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." 12.The Respondent raises a preliminary argument that the absence of a prior Notice of Objection to the Taxing Officer renders this application incompetent ab initio and that the Court lacks jurisdiction to entertain it. This argument is both procedurally and legally misconceived. The Supreme Court of Kenya addressed the precise question in Non-Governmental Organizations Coordination Board v EG & 5 Others (Petition (Application) 16 of 2019) [2023] KESC 78 (KLR), where it was held that an application for enlargement of time is the proper procedural gateway through which a party must first secure leave of the Court before lodging a competent Reference. The Court in that case made it clear that the only practice disapproved is the filing of an irregular Reference first and then seeking to have it deemed duly filed. Accordingly, the absence of a prior Notice of Objection or filed Reference at the time of seeking enlargement of time is not fatal. Paragraph 11(4) would be rendered a dead letter if a party had to perform the very act for which it seeks leave. This preliminary arguement is accordingly overruled. 13.Turning to the substantive question of whether sufficient cause has been shown, this Court is guided by the now well-settled principles on enlargement of time as articulated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (Application 16 of 2014) [2014] KESC 12 (KLR), which this Court applies by analogy. Those principles are: (i) 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; (ii) the party seeking extension bears the burden of satisfying the Court; (iii) the Court considers the matter on its specific facts; (iv) whether there is a reasonable explanation for the delay; (v) whether there will be prejudice to the Respondent if the extension is granted; and (vi) whether the application has been brought without undue delay. 14.Those principles have been specifically applied in the context of Paragraph 11(4) of the ARO in numerous decisions of this Court. In Muri Mwaniki & Wamiti Advocates v Sanlam General Insurance Limited (Civil Miscellaneous Application E040 of 2024) [2025] KEHC 3060 (KLR), Mutende J, applying the same principles, enlarged time for the filing of a Reference in circumstances closely analogous to the present, holding that where a Taxation Ruling is delivered without notice to the parties — the ruling in that case having been delivered on a date other than the date that was given, with no notification — the delay in bringing the application was excusable and the court was not absolved of the blame for having a ruling on record without notice to the parties. In Muri Mwaniki & Wamiti Advocates v Gachemi (Miscellaneous Application 10 of 2017) [2024] KEELC 5839 (KLR), a similar enlargement was granted where the taxation ruling was delivered without notice. And in Odiya t/a Odiya & Associates Advocates v Ngengi (Miscellaneous Civil Case E1079 of 2023) [2025] KEHC 7448 (KLR), the Court enlarged time upon finding that the Taxing Officer had erred in law by failing to deliver the ruling on the set date and then failing to notify the parties of the new date for delivery. i. Length of the delay and the explanation for it 15.On the chronology of events, the Ruling was delivered on 10th December 2025. The fourteen-day period under Paragraph 11(1) of the ARO therefore expired on or about 24th December 2025. The present application was filed on 1st April 2026 ,some three and a half months after the date of the Ruling. However, the Applicant deposes, and the evidence supports, that it had no knowledge of the Ruling until 6th March 2026. Measuring from that date of first knowledge, the Applicant filed this application within twenty-six (26) days. 16.The Applicant's explanation for the delay rests on a single, coherent factual premise: the Ruling was delivered on the Judiciary portal without notice to the Applicant or its Advocates on record, and was only discovered when the Applicant was served with the Respondent's adoption application. Three undisputed facts corroborate this explanation. First, the Taxing Officer did not deliver the Ruling on either of the two dates that had been given, on 26th August 2025 and 23rd September 2025. Second, neither party received a specific notice setting out a new date for delivery. Third, and most compellingly, the Respondent's own Advocates wrote to the Deputy Registrar on 15th October 2025 seeking an update on the pending Ruling. A party cannot simultaneously seek an update on the delivery of a ruling and then, in subsequent litigation, maintain that the parties were on constructive notice of its delivery. This is an admission by conduct that the Respondent itself did not know when the Ruling would be delivered. 17.The Respondent argues that, having been told on 23rd September 2025 that the Ruling would be posted on the portal, the Applicant was under a duty to monitor the portal and cannot escape the consequences of its own inaction. This Court does not accept that argument. Uploading a document to a portal is a form of record-keeping, not notification. The obligation to monitor a portal for unknown future uploads cannot be equated with the receipt of positive notice specifying a date for delivery of a ruling. The distinction matters because the ARO's fourteen-day time limit flows from the date of the "decision" and a party cannot be said to be on notice of a decision it had no reasonable means of knowing had been made. To hold otherwise would be to render the time limit arbitrary and potentially unjust, particularly where the very irregularity that caused the problem emanated from the Court's process. ii. Operativeperiodofdelay,arguability,andprejudice 18.The legally operative delay in this matter is twenty-six days , the period between the Applicant's first knowledge of the Ruling (6th March 2026) and the filing of this application (1st April 2026). This Court accepts the proposition, consistent with principle, that time cannot run against a party that had no knowledge of the event from which the limitation period flows. As Mwera J. reasoned in Republic v Minister for Agriculture & 2 Others ex parte Samuel Muchiri W'Njuguna & 6 Others [2006] KEHC 3504 (KLR), discretion in costs matters must be exercised reasonably and with proportionality. A twenty-six-day response upon first knowledge of an adverse ruling is, in this Court's view, neither inordinate nor explicable as mere indolence. 19.The Court must also consider the arguability of the intended Reference, not to decide it on the merits but to assess whether it represents a genuine grievance or a mere delay tactic. This is addressed separately under Issue B below, but for present purposes the Court notes that a Reference challenging a nearly ninefold enhancement of instruction fees in a matter where the value of the subject matter was not ascertainable from the pleadings is not frivolous. 20.On prejudice to the Respondent, the position is that the Respondent holds a Certificate of Taxation issued on 27th January 2026 in the sum of Kshs. 521,505/=. That Certificate has not been executed. A conditional stay of execution pending the Reference would cause the Respondent no irreversible prejudice ,only a temporary delay in receiving its costs, which remains compensable. The prejudice to the Applicant, on the other hand, if leave is refused, would be absolute and permanent: it would be foreclosed from ever challenging a ruling of which it had no notice, on account of time that ran without its knowledge. This Court is mindful of Article 48 of the Constitution of Kenya, 2010, which imposes on the State a duty to ensure access to justice for all persons, and Article 159(2)(d), which directs courts to administer justice without undue regard to procedural technicalities. In this constitutional context, no party should be condemned without a hearing on the strength of a limitation period that ran in its ignorance. 20.This Court accordingly finds that the Applicant has established sufficient cause to warrant enlargement of time. Issue A is answered in favour of the Applicant. B. Whether stay of execution should be granted pending the intended Reference 21.The starting point is Section 51(2) of the Advocates Act, Chapter 16 of the Laws of Kenya, which provides that the certificate of the taxing officer, unless set aside or altered by the Court, is final as to the amount of costs covered thereby. A Certificate of Taxation accordingly partakes of the character of a final judgment. This has been consistently affirmed: see Hamilton Harrison & Mathews v Ngengi (Miscellaneous Application 428 of 2017) [2025] KEHC 13913 (KLR), and Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR). Its execution is accordingly a lawful process. 22.The question is therefore whether and on what legal basis the Court may stay such execution. The answer is found in three overlapping sources of power. 23.First, Paragraph 11(4) of the ARO itself empowers the Court to enlarge the time for the taking of any step under Paragraph 11. The clear purpose of granting leave to file a Reference is to enable the aggrieved party to ventilate its grievance. If execution were permitted to proceed and the decretal sum were recovered while the Reference was pending, the Reference would be rendered nugatory upon success , a result directly at odds with the purpose of Paragraph 11(4). This is the reasoning adopted in Benson Ambuti Adega & 2 Others v Kibos Sugar and Allied Industries Ltd & 4 Others (Petition No. 8 of 2018) [2022] KEELC 1245 (KLR), where the Court, in the context of an application under Order 40 and Paragraph 11(4) of the ARO, granted a stay of execution of a taxing officer's decisions pending a Reference, holding that without such stay the Reference would be rendered nugatory. The Court in that case adopted and applied the holding in Labh Singh Harman Singh Ltd v Attorney General & 2 Others [2016] eKLR that this Court has power to order stay of a certificate of taxation as part of the execution process under the Civil Procedure Rules, since taxation of costs is part of that process.Second, Section 3A of the Civil Procedure Act provides that nothing in the Act shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process. Where the Court has granted leave to file a Reference under Paragraph 11(4), it is necessary for the ends of justice that execution of the very Certificate the Reference will challenge be paused, pending determination. To hold otherwise would be to grant with one hand and take away with the other.Third, the general principles governing stay of execution pending an appeal or reference which, by analogy, apply here, were stated in Butt v Rent Restriction 24.Tribunal [1979] KLR 42, as consistently cited and applied, including most recently in Barasa v Nambale (Civil Appeal E135 of 2024) [2025] KEHC 4986 (KLR). Those principles are: (a) the power to grant or refuse a stay is discretionary and should be exercised so as not to render the Reference nugatory; (b) a stay should generally be granted where there are good grounds to do so so that a successful Reference may not be frustrated; (c) a judge should not refuse a stay merely because another remedy may later become available; and (d) the Court exercises its discretion having regard to the special circumstances and unique requirements of each case. 25.Applying these principles to the present case, this Court makes the following findings. First, the intended Reference is arguable, as determined under Issue B above. Second, if execution proceeds and the sum of Kshs. 521,505/= is recovered from the Applicant before the Reference is determined, a successful Reference may not be rendered fully effective — the Applicant may face difficulty recovering any overpayment, and the Reference would in practical terms be nugatory. Third, the Respondent is not prejudiced beyond a temporary delay in receiving its taxed costs a delay that is compensable by costs if the Reference fails. 26.However, the finality of the Certificate of Taxation under Section 51(2) of the Advocates Act means that a stay should not be granted unconditionally. The Respondent is a lawful creditor with a certified debt. The proper course is a conditional stay requiring the Applicant to provide security. This approach was adopted in Benson Ambuti Adega (supra), where the court conditioned the stay on the provision of adequate security, and is consistent with the general principle that a stay pending a reference should be granted on terms that protect both parties. 27.The allegations of Respondent's forum shopping objection arising from the existence of adoption proceedings in HCCOMMMISC No. E062 of 2024 before a different Judge does not defeat the stay application. These proceedings (HCCOMMMISC No. E017 of 2026) are a distinct matter with distinct prayers, addressing the separate question of whether the Applicant should be permitted to challenge the Taxation Ruling. The two matters are not identical. Whether they ought to be consolidated is a question of case management, not a jurisdictional bar to this Court entertaining the present application. 28.In the result, this Court grants a conditional stay of execution. V. Disposition 29.In light of the foregoing analysis, this Court makes the following orders:1.The Applicant has established sufficient cause to warrant the exercise of this Court's discretion under Paragraph 11(4) of the Advocates (Remuneration) Order, 2014. Leave is hereby granted to the Applicant to file a Notice of Objection with the Taxing Officer and thereafter a Taxation Reference against the Taxation Ruling delivered on 10th December 2025 in HCCOMMMISC No. E062 of 2024, out of time.2.The Applicant shall file and serve the Notice of Objection upon the Taxing Officer within fourteen (14) days of the date of this Ruling, and shall thereafter file and serve the Taxation Reference within a further fourteen (14) days of receiving the Taxing Officer's reasons, all in accordance with the procedure prescribed in Paragraphs 11(1) and 11(2) of the ARO. In the event the Applicant fails to comply with these timelines, leave granted herein shall automatically lapse without further order of this Court.3.Execution of the Taxation Ruling delivered on 10th December 2025, the Certificate of Taxation dated 27th January 2026, and all consequential proceedings arising therefrom are hereby stayed pending the hearing and determination of the intended Reference, on condition that within twenty-one (21) days of the date of this Ruling the Applicant shall deposit the sum of Kenya Shillings Two Hundred Thousand (Kshs. 200,000/=) into Court or into a joint interest-earning account in the names of the advocates for both parties, as security for the due performance of any order that may be made upon the determination of the Reference.4.In the event the Applicant fails to make the deposit required by Order 3 above within the stipulated timeline, the stay of execution hereby granted shall automatically lapse and the Respondent shall be at liberty to proceed with execution of the Certificate of Taxation without further order of this Court.5.The costs of this application shall be in the cause.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 17TH DAY OF JUNE 2026.HON. LADY JUSTICE W. K. MICHENISigned By/for:THE JUDICIARY OF KENYAHON. LADY JUSTICE WENDY MICHENI