https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7780

United Democratic Alliance v Mukinginyi & another (Civil Appeal E249 of 2024) [2026] KEHC 7780 (KLR) (Civ) (2 June 2026) (Ruling) Neutral citation: [2026] KEHC 7780 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E249 of 2024 AN Ongeri, J June 2, 2026 Between United Democratic Alliance Applicant and Walter Trenk Mukinginyi 1st Respondent Francis Ingosi Kaburu 2nd Respondent Ruling 1.There are two applications and a preliminary objection coming for consideration in the Ruling as follows; the applicant's motion dated September 8, 2025, the first respondent’s motion dated August 22, 2025, and the first respondent’s preliminary objection dated September 25, 2025. 2.The application dated 8/9/2025 brought under Chamber Summons pursuant to Rules (11 (1) 11(2) and 11 (4) of the Advocates Remuneration (Amendment) Order 2014); Section 40 of the Advocates Act, Section 3A of the Civil Procedure Act and all other enabling provisions of the Law) seeking the following orders;i.That the application be certified as urgent and be dispensed with in the first instance.ii.That pending the hearing and determination of this application and further orders of the court, this Court be pleased to order stay of execution of the certificate of taxation dated 14th July 2025 and the Taxing Officer’s ruling on taxation dated 9th July, 2025.iii.That this Court be pleased to enlarge time for the applicant to file a reference to this Court against the Certificate of Taxation dated 14th July, 2025 and ruling of the Taxing Officer dated 9th July 2025.iv.That the application herein be admitted as a reference against the taxation proceedings and the Court be pleased to vary, review and/or set aside the certificate of costs dated 14th July 2025 and ruling of the Taxing Master dated 9th July 2025 and in its place strike out and/or dismiss the Advocate-Client Bill of Costs dated 25th September, 2024.v.That costs of this application be awarded to the Applicant. 3.The Application is base on the following grounds;i.That vide a ruling dated 9th July 2025, the Taxing Officer taxed the Respondent’s’ Advocate-Client Bill of Costs as against the Applicant at the sum of Kshs.12,941,900/-.ii.That the Applicant aggrieved by the ruling of the said Taxing Officer intends to file a reference.iii.That the intended reference raises grounds that when scrutinized have a high likelihood of overturning the decision of the Taxing office to wit;a.The Taxing Officer erred in both law and principle in taxing the Advocate Client bill of cost against the Applicant whereas there was no advocate client relationship between the Respondents and the Applicant.b.The Taxing Officer erred in law and fact when he failed to take into account that all through the proceedings, the Respondents were throughout the proceedings acting in person and not through an advocate.c.The Taxing Officer erred unfailing to consider the material fact that all pleadings filed by the Respondents during proceedings were drafted by Mr. Walter Trenk Mukinginyi, the 1st Respondent himself;d.The Taxing Officer grossly erred in law and principle in taxing the bill of costs in accordance with the Advocates Remuneration Order, 2014 which does not apply to non-advocates or persons acting in persons.e.The Taxing Officer erred in law and fact by proceeding on wrong principles of law to tax instruction fees despite the Respondents representing themselves in person during court proceedings;f.The Taxing Officer erred in law and fact in awarding unjustified costs under “court attendance” which misrepresented that the Respondents attended proceedings before the Court of Appeal.g.The Taxing Officer erroneously failed in law and principles by improperly and incorrectly applying the law to the facts of the matter before him and therefore arrived at an unjust and unfair decision.h.The arrival of the Taxing Officer’s decision is marred with inconsistencies as can be gleaned from the contradictory dates indicated in the ruling vis-à-vis the date referred to in the certificate of costs; andi.In totality, the Taxing Officer’s decision is manifestly excessive, unreasonable, unjustified and without any legal basis and justifies the interference of this Honourable Court and thus, it should be set aside, reviewed or otherwise varied.iv.That the Respondents have since obtained a certificate of taxation and are in the process of filing for execution of the same.v.That there is justified fear and apprehension by the Applicant that pending the hearing and determination of the intended reference, the Respondents shall unless restrained by this Honourable Court proceed to execute at any time of its detriment.vi.That the looming execution of the said certificate of costs will cause irreparable harm to the Applicant.vii.That it is extremely important that the orders sought in this application be issued to avert the possibility of the intended reference being rendered nugatory, and an exercise in futility.viii.That the Respondent s stands to suffer no prejudice by this application.ix.That this application has been bought timeously and it is in the interest of justice and fairness in litigation that the reference herein be allowed. 4.The application is supported by the Affidavit of Hon. Hassan Omar Hassan sworn on 8/9/2025 as follows;i.That I am an adult of sound mind and understanding and competent to swear this affidavit.ii.That I am the Secretary General of the Applicant herein knowledgeable of the facts attending to this matter and duly competent to sear this Affidavit.iii.That vide a ruling dated 9th July 29th July, 2025, the Honourable Taxing Officer taxed the Respondents’ Advocate-Client Bill of Costs as against the Applicant at the sum of Kshs.12,941,900/-. (attached hereto and marked as “HOH-1”is a copy of the said ruling).iv.That the Applicant aggrieved by the ruling of the said Taxing Officer intends to file a reference and has since instructed the firm of M/S Adrian Kamotho Njenga & Co. Advocates to attend to the matter.v.That nonetheless, I have been advised by our Advocates on record, whose advice I verily believe to be true that a reference ought to be filed within 14 days after the receipt of reasons of the Taxing Officer as specified under paragraph 11(2) of the Advocates Remuneration Order, 2014.vi.That the delay in filing the reference is not deliberate as the Applicant has just become aware of the existence of the said ruling as well as the certificate of taxation dated 14th July, 2025 (attached hereto and marked as “HOH-2”is a copy of the said certificate of taxation). 5.The Respondent/Judgment Creditor raised a preliminary objection dated 25/9/2025 as follows;i.That the Respondent’s application is incompetent, misconceived, and an abuse of the court process as it seeks to challenge a Certificate of Taxation through an interlocutory application, whereas the law provides for a specific and exclusive statutory mechanism for such a challenge, namely a Reference to a Judge under paragraph 11 of the Advocates (Remuneration) Order.ii.That this Honourable Court lacks the jurisdiction to entertain the said application as it is functus officio on the issue of taxation, the statutory timeline for filing a Reference (114 days from the date of the Respondent’s notification of the Certificate of Taxation) having long expired, thereby rendering the Certificate of Taxation final and binding.iii.That the Respondent’s application is statute-barred and offends the mandatory provisions of the Advocates (Remuneration) Order and the binding precedent in Premchand Raichand Ltd & another v Quarry Services of East Africa Ltd & others [1972] E.A 162 which set the immutable 14 days timeline for such challenges. 6.The Respondents also filed grounds of opposition and a Replying Affidavit sworn by Walter Trenk Mukinginyi as follows;i.That I am the Applicant/Judgment Creditor in this matter and am competent to swear this affidavit in response to the Respondent’s application dated 8th September, 2025.ii.That I have read and understood the said application and the supporting affidavit sworn by MR. Hassan Omar on 8th September 2025 and to which I respond.iii.That the Respondent’s application is not brought in good faith and is a spurious and dilatory tactic conceived and filed only after I commenced garnishee proceedings to enjoy the fruits of the Decree, a fact they do not disclose to this Honourable Court.iv.That regarding the allegation that I am not an advocate, is made in utmost bad faith. The Respondent’s own conduct contradicts this allegation, as evidenced by their service of the very application they are now relying upon directly upon me and copying my instructed Advocates on record, M/S Oluoch Awino & Co. Advocates, via email on or about 2nd August 2025. Attached hereon is the email marked WTM-001.v.That the Respondent was duly served with the Bill of Costs and the subsequent Certificate of Taxation but chose not to participate in the taxation process nor to file a Reference within the lawful 14 days period.vi.That the Respondent has also failed to respond to my Garnishee application, which therefore remains unopposed, further demonstrating that their current application is merely a device to delay justice. 7.The Applicant/Judgment Creditor, Walter Trenk Mukingnyi, raised a preliminary objection to the Respondent’s Notice of Motion application dated 8th September 2025 thrown out based on the following grounds;i.That the Respondent's application is legally incompetent and an abuse of court process. They are trying to challenge a Certificate of Taxation using a standard interlocutory application, whereas the law specifically requires such a challenge to be done via a Reference to a Judge under Paragraph 11 of the Advocates (Remuneration) Order.ii.That the Court does not have the power to hear this application. The strict statutory timeline to file a reference is 14 days from the date the Respondent was notified of the taxation. Because this timeline has long expired, the Court's role is finished (functus officio), making the Certificate of Taxation final and binding.iii.That the application violates the Advocates (Remuneration) Order and defies the binding legal precedent set in Premchand Raichand Ltd & Another v Quarry Services of East Africa [1972] E.A. 162, which established that the 14-day timeline for such challenges cannot be changed (it is immutable). 8.The Applicant urged the Court to strike out and/or dismiss the Respondent’s application dated 8th September 2025, and order the Respondent to pay the legal costs (with costs), because the application is fundamentally flawed and an abuse of the court process. 9.The parties filed written submissions as follows; The Applicant submitted that the purpose of these submissions, is to support the applicant's Preliminary Objection dated September 25, 2025. 10.The underlying dispute stems from a suit where the applicant was successful and was awarded costs. 11.A Bill of Costs was subsequently filed and taxed uncontested, resulting in a Certificate of Taxation issued on June 24, 2025. 12.The respondent took no action until they were served with the applicant’s Garnishee proceedings, after which they filed their application well past the statutory timeline. 13.Consequently, the court is asked to determine whether the respondent's application is incompetent, time-barred, and an abuse of process, and whether the applicant is entitled to the orders sought in the Garnishee application. 14.The applicant contends that the respondent's application is statutorily time-barred, which serves as the cornerstone of their objection. 15.Under Paragraph 11 of the Advocates (Remuneration) Order, the exclusive mechanism to challenge a taxation ruling is a Reference to a Judge filed within 14 days. 16.Since the respondent was served with the Certificate of Taxation on June 24, 2025, the window to object closed around July 7, 2025, making the respondent's application, filed over a month later, a jurisdictional nullity according to established legal precedent. 17.Furthermore, the applicant argues the application is an abuse of process and filed in bad faith, functioning as a tactical maneuver to delay justice rather than a genuine challenge. 18.The respondent's chronology of ignoring the Bill of Costs, the taxation hearing, and the Certificate of Taxation, only to spring into action when threatened with Garnishee execution, demonstrates a pattern of inertia and dilatory tactics that the court should not reward. 19.Additionally, the applicant argues that the respondent is attempting to re-litigate a concluded issue. 20.By failing to participate or file a timely Reference, the respondent allowed the Taxing Officer's discretionary ruling to become final and thus, complaining now that the costs are excessive is merely a thinly veiled attempt to re-argue the merits through an impermissible collateral application. 21.The applicant also dismisses the respondent's "non-advocate" argument as a diversion, asserting that the right to costs is a substantive right belonging to the successful litigant. 22.The engagement of M/S Oluoch Awino & Co. Advocates was strictly for the bona fide purpose of quantifying those costs through the established legal framework, which does not extinguish the applicant's lawful right to recovery. 23.Finally, because the respondent has filed no replying affidavit to contest the Garnishee application, it remains completely unopposed. 24.In the interest of justice and to ensure the successful party enjoys the fruits of their judgment, the applicant prays that the court uphold the Preliminary Objection, dismiss the respondent's Notice of Motion with costs, grant the Garnishee application, and award the costs of these submissions to the applicant. 25.The submissions by Adrian Kamotho address three interconnected applications before the court: the applicant's motion dated September 8, 2025, the first respondent’s motion dated August 22, 2025, and the first respondent’s preliminary objection dated September 25, 2025. 26.The primary controversy stems from a taxation ruling delivered on June 25, 2025, which gave rise to a certificate of costs. In response, the applicant requests a stay of execution of the taxing officer's ruling, an enlargement of time to file a reference challenging the certificate of costs, and an order setting aside the ruling to dismiss the underlying advocate-client bill of costs. 27.Conversely, the first respondent seeks to enforce the certificate through a garnishee order absolute directing Equity Bank (Kenya) Limited to attach over twelve million Kenya shillings from the applicant’s bank accounts to satisfy the decretal sum. 28.The first respondent also raised a preliminary objection, asserting that the applicant's request is an incompetent attempt to contest a certificate of taxation via an interlocutory application and is statute-barred because it was filed past the mandatory fourteen-day statutory timeline, thereby depriving the court of jurisdiction. 29.Regarding the applicant’s request for an enlargement of time, the applicant argues that under rule 11(4) of the Advocates (Remuneration) Order, the High Court possesses the discretionary power to extend the time limits required for filing a reference. 30.Citing established judicial criteria, the applicant contends that the delay of just over a month was not deliberate or negligent, but occurred because they lacked knowledge that the ruling had been delivered. They argue that they acted with reasonable diligence upon learning of the decision, making the timeline acceptable by judicial standards. 31.They emphasize that denying the extension would prioritize procedural technicalities over substantive justice, violating constitutional principles. 32.To support the merits of the intended reference, the applicant contends that the taxing officer committed a fundamental error of principle and law by acting without jurisdiction. 33.The applicant states that there was never any advocate-client relationship, as the respondents acted in person throughout the proceedings and drafted their own pleadings. 34.Consequently, the applicant submits that the Advocates (Remuneration) Order applies strictly to qualified advocates and cannot be legally invoked by self-represented litigants. 35.They argue that the taxing officer’s decision to award instruction fees and court attendances where no advocate was involved results in unjust enrichment, a procedural nullity, and a manifestly excessive award that justifies judicial intervention. 36.The applicant further maintains that a stay of execution is necessary to prevent the pending reference from being rendered meaningless. 37.They argue that a stay merely preserves the status quo and imposes no prejudice on the respondents, whereas enforcing a potentially unlawful taxation would cause the applicant irreparable financial harm. 38.In contesting the first respondent's garnishee application, the applicant points out that it is premature and incompetent. 39.They argue that a certificate of taxation does not reach execution finality while a legitimate, active application for an enlargement of time to file a reference is pending before the court. 40.Granting a garnishee order absolute under these circumstances would unjustly pre-empt the reference and deny the applicant a fair hearing. 41.Furthermore, the applicant highlights a critical procedural defect in the first respondent's enforcement attempt, noting that they failed to first obtain a garnishee order nisi as legally required by the Civil Procedure Rules, and instead attempted to leap directly to an absolute order without demonstrating any exceptional urgency to bypass due process. 42.Finally, the applicant argues that the first respondent's preliminary objection should be dismissed because the statutory timeline is not an absolute barrier. 43.Because rule 11(4) gives the High Court explicit discretion to enlarge time even after the original period has lapsed, the argument that the court lacks jurisdiction is legally incorrect. 44.Ultimately, the applicant asks the court to allow their application for an extension and a stay of execution, to dismiss the first respondent’s garnishee motion and preliminary objection, and to award the associated legal costs to the applicant. 45.The respondent submitted in opposition to a Chamber Summons dated 8th September 2025, a Replying Affidavit, and written submissions filed by the Applicant, the United Democratic Alliance. 46.The First Respondent asserts that the Applicant’s challenge to the taxation of costs is procedurally incompetent, significantly time-barred, and factually unsupported, and therefore requests that the Court dismiss the Chamber Summons with costs and allow pending garnishee execution proceedings to go forward. 47.The background of the dispute traces back to a reasoned ruling on taxation delivered by the Taxing Officer, which was communicated on 23rd June 2025, followed by the issuance and service of a Certificate of Taxation on 14th July 2025. Instead of filing a proper reference to challenge the taxation within the mandatory timelines prescribed by Paragraph 11 of the Advocates (Remuneration) Order, 2014, the Applicant waited 56 days after being served to file a Chamber Summons. 48.In response to the unpaid certificate, the First Respondent initiated garnishee enforcement proceedings on 22nd August 2025. 49.The First Respondent argues that the Applicant’s Chamber Summons is procedurally defective because it fails to constitute a properly framed statutory Reference under Paragraph 11 of the Advocates (Remuneration) Order, which is a mandatory procedure that cannot be circumvented by using alternative court forms. 50.Furthermore, the application is heavily late, and the Applicant has neither formally sought court leave to file out of time nor provided a credible, contemporaneous explanation for the 56-day delay. 51.Citing established jurisprudence, the First Respondent notes that an extension of time is an equitable remedy rather than an automatic right, and procedural timelines must be strictly enforced to preserve finality in cost matters. 52.He submitted that because no competent reference was filed, the Certificate of Taxation remains final, enforceable, and equivalent to a judgment that legally justifies the First Respondent's garnishee actions. 53.The submissions actively counter the Applicant's reliance on the High Court decision in Millimo, Muthomi & Co Advocates v Kiru Tea Factory Company Ltd [2025] KEHC 12279 (KLR), 54.The First Respondent notes that Millimo was delivered on 29th August 2025, well after the current taxation process had already concluded in July 2025. 55.Under Kenyan legal principles, a later judicial statement cannot be applied retroactively to invalidate a finished process. 56.Additionally, Millimo is factually distinct because it involved a live, contemporaneous dispute over an advocate-client retainer during the taxation itself, whereas the Applicant in this case remained silent throughout the taxation proceedings and only raised objections as an afterthought once execution commenced. 57.By participating in the process and using the service of counsel, the Applicant is legally estopped from now denying the advocate-client relationship, as a party is not permitted to take inconsistent, opportunistic legal positions by both approbating and reprobating. 58.The First Respondent also maintains that the Applicant’s complaints regarding excessive fees are entirely unsupported bare assertions, lacking necessary documentary proof like bank statements or receipts to demonstrate any actual overpayment or error in principle by the Taxing Officer. 59.Lastly, a Replying Affidavit filed at the last minute by the Applicant on the morning of scheduled submissions is described as an irregular attempt to ambush the court with new, reactive facts and should be disregarded. 60.Ultimately, the First Respondent prays that the Court uphold its Preliminary Objection, dismiss the Applicant's Chamber Summons, and permit the garnishee application to proceed to a conclusion. 61.The garnishee filed submissions in response to the Chamber Summons application filed by the applicant and decree holder, Walter Trenk Mukinginyi. 62.The application seeks a garnishee order absolute, or alternatively a garnishee order nisi, directing the bank to attach funds held in the account of the respondent and judgment debtor, the United Democratic Alliance, to satisfy a decretal sum of Kenya Shillings 12,941,400 along with interest and costs. 63.The bank confirms that the judgment debtor operates account number 0810xxxxxxx14 at its Supreme Centre Branch. 64.However, it discloses that the account holds a balance of only Kenya Shillings 192,115.27, as verified by an account statement covering the period from September 1, 2025, to October 28, 2025. 65.This balance is vastly insufficient to meet the multi-million shilling decretal amount and the bank states that it is ready and willing to remit the available funds, but requests that its own legal costs of Kenya Shillings 30,000 be deducted from the account first. 66.In its analysis of the law, the bank references Order 23 Rule 1 of the Civil Procedure Rules 2010 and the case law Lesinko Njoroge & Gathogo Advocates v Invesco Assurance Co: Co-operative Bank of Kenya (Garnishee) [2020] eKLR to argue that its statutory duty is strictly limited to providing full disclosure regarding whether the funds in its possession are sufficient to satisfy the judgment debt. 67.The garnishee maintains that it has discharged this evidentiary burden by proving that the available funds cannot cover the entire debt. 68.Consequently, the bank requests that the court discharge it from the legal proceedings entirely, arguing there is no legal basis to hold it liable beyond the sums actually in its possession. 69.Should the court choose to issue a garnishee order absolute, the bank prays that the order be restricted strictly to the disclosed funds. 70.Regarding litigation costs, the bank asserts that costs should follow the event, meaning they should be borne by the judgment debtor whose failure to settle the original decree forced the dispute into court, thereby causing the neutral bank to incur legal expenses through its counsel. 71.The issues for determination this case are as follows;i.Whether the Applicant’s Notice of Motion dated September 8, 2025 is a proper Reference before this Court.ii.Whether this Court has the jurisdiction to enlarge time for the Applicant to file a Reference out of time against the Taxing Officer’s ruling.iii.Whether the taxation proceedings were a nullity ab initio due to the lack of an advocate-client relationship between the parties. 72.The Court has carefully considered the two applications and the Preliminary Objection, along with the rival submissions and the cited legal authorities. 73.The Preliminary Objection raised by the First Respondent challenges the jurisdiction of this Court to hear the Applicant’s motion, arguing that it is an incompetent challenge to a Certificate of Taxation filed outside the mandatory 14-day period prescribed by Paragraph 11 of the Advocates (Remuneration) Order, 2014. 74.While it is true that Paragraph 11(2) of the Advocates Remuneration Order requires a party aggrieved by a taxation to file a Reference within 14 days of receiving the Taxing Officer’s reasons, Paragraph 11(4) explicitly grants the High Court discretion to enlarge this time. 75.The law is clear that such jurisdiction exists even after the prescribed time has lapsed. 76.While extension of time is not a right but an equitable remedy, the court may grant it where there is a reasonable explanation for the delay, and where the application is made without undue delay, and no prejudice is suffered by the respondent that cannot be compensated by costs. 77.In this case, the Applicant has averred that it only became aware of the ruling and the Certificate of Taxation after the statutory period had lapsed. 78.The delay of approximately one month is not inordinate, and the First Respondent has not demonstrated any prejudice that cannot be remedied by an award of costs. 79.Therefore, this Court finds that the Preliminary Objection lacks merit as this Court is properly seized of jurisdiction to hear the application for enlargement of time. 80.Nevertheless, while the procedural hurdle of timelines can be excused, the Court finds that there is a more fundamental issue that goes to the very root of the taxation proceedings and that is the alleged absence of an advocate-client relationship. 81.The Applicant contends that the Respondents acted in person throughout the primary proceedings, that they drafted their own pleadings, and that the Bill of Costs was filed by the First Respondent (a self-represented litigant) and not by a qualified advocate. 82.The existence of an advocate-client relationship is a jurisdictional prerequisite for any taxation under the Advocates Act and the Advocates Remuneration Order. 83.In Millimo, Muthomi & Co Advocates v Kiru Tea Factory Company Ltd (supra), the High Court held that where a client disputes the existence of a retainer, the Taxing Master is divested of jurisdiction to proceed with taxation, and any decision rendered in the absence of such a relationship is a nullity. 84.The Taxing officer ought to have determined whether an advocate-client relationship existed between the parties. 85.In Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] eKLR, the Court of Appeal held that the issue of whether an advocate was properly retained is a jurisdictional question that the Taxing Officer is perfectly competent to determine. 86.Applying this principle to the instant case, the Applicant has sworn an affidavit stating that the Respondents were acting in person and were not represented by an advocate. 87.The Certificate of Taxation dated July 14, 2025 purports to award costs for "instruction fees" and "court attendance" in favor of a self-represented litigant. 88.That issue has to be determined first since the Advocates Remuneration Order is designed to regulate fees payable to advocates for legal services rendered. 89.A self-represented litigant is not entitled to instruction fees or other professional costs as if they were an advocate. 90.In light of this finding, the Court finds it unnecessary to analyze the merits of the garnishee application dated August 22, 2025, as the same has to await the determination of the reference. 91.In conclusion, this Court makes the following orders;i.That the Preliminary Objection dated September 25, 2025 is dismissed.ii.That the Applicant’s Notice of Motion dated September 8, 2025 is allowed.iii.That the time is hereby enlarged for the Applicant to file a Reference against the Taxing Officer’s ruling, and the Chamber Summons filed herein is admitted as a valid Reference.iv.That the ruling on taxation dated July 9, 2025, and the Certificate of Taxation dated July 14, 2025, are hereby set aside in their entirety.v.That the First Respondent’s Notice of Motion dated August 22, 2025, seeking garnishee orders, is hereby struck out. 92.Each party to bear its own costs of the two applications and the preliminary objection. 93.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2026.ASENATH ONGERIJUDGEIn the presence ofMr Ombongi holding brief for Dr Kamotho for the ApplicantMr Mukinginyi for the 1st Respondent in personMiss Kuumu for the GarnisheeChrispine - Court Assistant