https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10187

Titus Makhanu & Associates Advocates v Kenya Medical Supplies Authority (Miscellaneous Application E195 of 2024) [2026] KEHC 10187 (KLR) (Commercial and Tax) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10187 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E195 of 2024 FG Mugambi, J July 10, 2026 Between Titus Makhanu & Associates Advocates Applicant and Kenya Medical Supplies Authority Respondent Ruling Introduction and Background 1.This ruling determines two applications placed before the Court. The first is the application dated 11th June 2024, filed by the respondent, KEMSA, which sought, principally, an order that leave be granted to the firm of Nyaanga & Mugisha Advocates to come on record for them; that all further proceedings in respect of the application dated 27th May 2024, filed by Titus Makhanu & Associates Advocates (the Advocates), be stayed; and that the inter-partes hearing date fixed for 22nd July 2024 be vacated. These prayers are now spent. 2.The remaining substantive prayers in respect of this application seek that time be enlarged to enable KEMSA to comply with the requirements of the Advocates' Remuneration Order (ARO) in mounting a challenge to, or objection against, the Taxing Officer's Ruling delivered on 15th April 2024, and that leave be granted to KEMSA to file a Reference together with objections against the said Ruling out of time. 3.The second is the application dated 27th May 2024, filed by the Advocates, which sought principally that judgment be entered in favour of the Advocate against KEMSA in the sum of Kshs. 149,977,677.22, being the costs as taxed by the Taxing Master, together with an order that the taxed costs do attract interest at the rate of 14% per annum, calculated from the expiry of 1 month following 10th August 2020, being the date on which the Advocate first demanded payment of its fees from KEMSA on the instructions in question, until payment in full. Each of the parties has, additionally, sought the costs of its respective application. 4.I have considered the responses to the said applications as well as the written submissions on record. Analysis and Determination 5.Given the nature of the prayers sought, the application dated 11th June 2024 falls to be determined first, in priority to the application dated 27th May 2024. 6.In this regard, the threshold for the exercise of this Court's discretion to enlarge time is set out in Rule 11(4) of the ARO, which provides that:“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; An 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.” 7.The guiding principles applicable to the exercise of this discretion were set out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat V The Independent Electoral and Boundaries Commission & 7 Others, [2014] eKLR. These are namely: that extension of time is not a right but an equitable remedy available only to a deserving party at the Court's discretion; that the burden lies on the applicant to lay a satisfactory basis for the grant of such extension; that the exercise of the discretion falls to be considered on a case-by-case basis; that there must be a reasonable explanation for the delay; that the Court must have regard to any prejudice the respondent stands to suffer if the extension is granted; that the application must have been brought without undue delay; and that, in appropriate cases, public interest may weigh in favour of extending time. 8.Applying these principles to the matter before me, I note that according to the Advocate, KEMSA was served with the Bill of Costs and Notice of Taxation on 11th March 2024, and was subsequently served with the Taxation Certificate on 20th May 2024, together with a demand that payment be made within 7 days, failing which the Advocate would apply to have the Certificate converted into a judgment of this Court. No payment having been made, the Advocate filed its application for conversion on 27th May 2024. KEMSA contends that it was only upon being served with that application that on 11th June 2024, it filed the present application for stay and enlargement of time. 9.Whilst the Advocate characterizes this sequence as demonstrative of inordinate delay, KEMSA maintains that it was, throughout, kept in the dark as to the true state of the proceedings. I find, having considered the submissions of both parties, that the present application was filed barely a month after the Certificate of Costs was issued and approximately 2 months after judgment was entered on the Bill of Costs on 15th April 2024. In the circumstances, I do not consider this period to constitute unreasonable or inordinate delay. 10.As to the reason for KEMSA's non-participation in the taxation proceedings, it is asserted that the firm of Momanyi & Associates, which had then been instructed by KEMSA, failed to enter appearance or file any opposition to the Bill, with the result that taxation proceeded ex parte and without KEMSA's knowledge. This account is disputed by the Advocate, who maintains that the present counsel had at all material times been on record for KEMSA and had been duly served with notice to appear in the taxation process, such that any failure to participate is attributable to KEMSA alone. 11.KEMSA further contends that, even as the parties were engaged in settlement discussions, the Advocate acted in bad faith by proceeding to file the application of 27th May 2024 seeking to convert the Certificate of Taxation into a judgment for purposes of execution, and that execution of the sum of Kshs. 149,977,677.22 would jeopardize its critical statutory mandate and expose public funds to loss in respect of legal services which it maintains were not procured for public benefit. 12.Indeed, I note that the said Bill and Notice of Taxation were served as borne out by the Affidavit of Service sworn on 15th March 2024. That notwithstanding, a finding that service was properly effected does not, in itself, conclude the matter before me. There remain other and weightier considerations which this Court is obliged to consider in determining whether the discretion to enlarge time ought to be exercised in KEMSA's favour. 13.Of great significance is the defence raised by KEMSA that no advocate-client relationship existed between it and the Advocate, and that any such relationship subsisted only as between the Advocate and KEMSA's Chief Executive Officer in his personal capacity. This is a matter of considerable significance, for if it were ultimately to be established that no advocate-client relationship existed between the parties to the taxation, the very foundation upon which the Bill of Costs was taxed, and upon which the resultant Certificate of Taxation was issued, would be called into serious question. 14.It is, accordingly, an issue that cannot properly be brushed aside or determined in a summary manner at this interlocutory stage, but one that warrants full ventilation and determination on its merits, with the benefit of evidence and argument from both sides, in the appropriate forum and at the appropriate stage of these proceedings. 15.I am, further, alive to the substantial magnitude of the sum in issue in these proceedings, namely Kshs. 149,977,677.22, a figure which, by any measure, is neither trivial nor insignificant. This correspondingly heightens the need for this Court to ensure that the dispute between the parties is brought to a final and conclusive determination on its merits, rather than disposed of on a technicality of time. 16.The Advocate has not demonstrated, beyond the bare assertion of delay, any concrete or quantifiable prejudice that it stands to suffer should the enlargement of time be granted. It is trite that the mere loss of a procedural advantage, such as the opportunity to execute upon a Certificate of Taxation before it is subjected to challenge, does not, without more, amount to prejudice of the kind that ought to weigh against the grant of an equitable remedy such as this. Any prejudice that may be occasioned to the Advocate by reason of the delay attendant upon the ventilation of the intended Reference is, in my view, capable of adequate redress through an award of costs, and, in the event that the Advocate ultimately prevails, through the accrual of interest upon the taxed sum for the period of the delay. 17.Finally, I believe that the public interest is better served by permitting the questions raised to be tested and resolved on merits, through the proper mechanism of a Reference, rather than by permitting execution to proceed against public funds on the strength of a taxation whose jurisdictional foundation remains in serious dispute. For all these reasons I find that the application dated 11th June 2024 is merited. 18.Turning now to the application dated 27th May 2024, the Advocate contends that KEMSA has failed to demonstrate sufficient cause, or any substantial loss it stands to suffer, should the application for entry of judgment be allowed, and further avers that it is willing and able to refund the taxed sum, together with any interest accrued thereon, should the matter ultimately be determined in KEMSA's favour. It is urged, on this basis, that the Certificate of Taxation ought to be converted into a judgment of this Court without further delay, and that KEMSA's professed intention to challenge the taxation affords no proper basis for withholding such conversion. 19.KEMSA, for its part, maintains that it has not exhausted the avenues of challenge available to it under the law, chief among them being the filing of a Reference against the Taxing Officer's decision. It contends that it ought, in fairness, to be afforded the opportunity, as contemplated under Paragraph 11(1) of the ARO, to ventilate that challenge before the application for entry of judgment is determined against it. KEMSA maintains, further, that its intended Reference has high prospects of success, resting as it does on the contention that the Taxing Officer lacked jurisdiction to tax the Advocate's Bill of Costs, in the absence of any advocate-client relationship between the Advocate and KEMSA. 20.Having already found, for the reasons set out above, that KEMSA has laid a sufficient basis for the enlargement of time within which to mount its intended challenge to the Taxing Officer's Ruling, it would, in my view, occasion a manifest injustice, and would render nugatory the very leave granted, were this Court, in the same breath, to allow the taxed sum to be converted into a judgment capable of immediate execution. 21.To do so would be to permit the Advocate to reap the fruits of a taxation whose jurisdictional validity stands to be tested through the Reference now sanctioned by this Court, before that challenge has been heard, and would effectively pre-empt the very relief KEMSA has just been permitted to pursue. The prudent and judicious course, in the circumstances, is that the application for entry of judgment ought properly to abide the outcome of the Reference to be filed by KEMSA, rather than be determined in isolation and in advance of it. 22.As to the Advocate's undertaking to refund the taxed sum should the matter ultimately be resolved in KEMSA's favour, I do not consider this a sufficient answer to the difficulty identified above. The undertaking, however genuinely made, would not adequately safeguard KEMSA, or the public funds in its custody, against the practical and evidentiary difficulties inherent in recovering so substantial a sum after the fact, nor does it address the more fundamental jurisdictional objection raised by KEMSA. 23.In the result, and for the reasons set out in this ruling, I find that the application dated 27th May 2024 is premature and cannot, at this stage, be granted. The same shall accordingly abide the outcome of the Reference to be filed by KEMSA pursuant to the leave granted herein. Disposition 24.For the reasons set out above, I make the following final orders:i.The application dated 11th June 2024 filed by KEMSA is hereby allowed.ii.The application dated 27th May 2024 is hereby stayed and shall abide the outcome of the Reference to be filed pursuant to order (1) above.iii.Each party shall bear its own costs of both applications. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2026.F. MUGAMBIJUDGEDelivered in presence of:Makhanu for the advocateRotich for the clientCourt Assistants: Lillian & Gloria