The applicant Stanley Kipkemboi Langat seeks orders that this honorable court be pleased to enlarge time within which to file a Reference against the decision of the taxing officer and that this Honorable Court does find it just and fit to stay execution of the Taxing Officer's ruling dated 27th March, 2024 taxing the same at Kshs.97,575= pending the hearing and determination of the reference filed herein. Moreover, that the draft notice of objection and reference herein be deemed to be properly filed and on record. Furthermore, that the decision of the Taxing Officer Hon. P. Nyotah on 27th March, 2024 on the Applicant's Bill of Costs dated 24th July, 2023 be reviewed and/or varied. There be no order as to costs.
The application is supported by the affidavit of Karungu Peninah and grounds that the honorable court issued a ruling dated 27th March 2024 on the party to party costs dated 24th July 2023 and the same was taxed at Kshs.97575. The honorable taxing officer advised that they would get the reasons for the dispensation on taxation as it was delivered in court in the substratum of the ruling upon acquisition.
They proceeded to acquire the ruling therein, unfortunately, due to the pressures and backlog of work the same was received by the advocate on record post the requisite time for filing a Reference and the same was not intentional nor meant to prejudice any party nor delay the court proceedings nor malign the dignity of this onorable court.
The Defendant/Applicant is dissatisfied with the decision of the taxing officer and is desirous of filing a Reference against the same but the time for filing the Reference has since lapsed.
The intended Reference is arguable and the orders of stay sought is intended to safeguard the interests of Applicant by preventing the execution of the decision of the taxing officer against which a Reference is sought to be preferred.
The matter herein was complex with multiple suits namely ELC No. 342 of 2012 Formerly Nakuru HCCC 271 of 2012 And Nakuru ELC 343 Of 2012 Formerly Nakuru HCCC 304 of 2012 (OS), where the Plaintiff/Applicant sought consolidation vide Application dated 11th February, 2023, and the same was dismissed.
The suit herein is on ownership of L.R.NO 13287/178 which is plot excised from the whole L.R.NO 13287/127, hence a highly complex and emotive matter that has been in court for a period of more than 10 years.
The taxing officer erred in law and fact by failing to acknowledge that the Plaintiff/Respondent failed to appreciate and aid the court in achieving its overriding objectives in the delivery of justice and in this capacity the Plaintiff/Respondent has occasioned prejudice, mental anguish and irreparable loss upon the Applicant/Defendant for a period of 10 years.
According to the applicant, no prejudice will be occasioned on the Respondent if this application is allowed. However, if this application is not allowed, the Applicant stands to suffer huge loss and will be shut out from ventilating its Reference, which will result in serious miscarriage of justice.
In the supporting affidavit the applicant’s advocate states that she attended court on 27th March 2024 when the Deputy Registrar delivered her ruling by reading out the taxing dispensation. The bill dated 24th July 2022 was taxed at Ksh.97,575and the reasons of the ruling were to be found in the substratum of the ruling. She requested for stay of execution but the same was declined. There was a delay in procuring the ruling resulting in delay in filing the reference necessitating this application for enlargement of time to file a reference.
The applicant’s counsel states that failure to file the reference was occasioned by an honest Mistake on her part in failing to keep track on the process of the acquisition of the said ruling. She states that the reference is arguable as the taxing officer awarded an extremely low figure as instruction fees of Kshs45000 and yet the matter was complex and had been in court for more than 10 years and that it revolves on land which is highly emotive.
In the replying affidavit of George Ogembo, advocate for the respondent, he states that the ruling in the bill of costs dated 24th July 2023 was delivered on 27th March 2024 and the bill of costs was taxed at Ksh 97,575. The applicants counsel was present during the ruling and that the ruling was typed and ready for collection on the very date it was delivered. According to the respondent, the reasons given by the applicant are false. The respondent states that the applicant has not advanced the reasons for failure to file the reference in time and that he has not explained the mistake that led to failure to file the reference. The application was filed 28 days after the ruling which is inordinate and in excusable.
The respondent states that the reasons given by the taxing officer for giving that figure are that the matter was concluded at a preliminary stage because the respondent did not file a response and therefore the suit was not defended. There was no complexity in the matter because it was not defended.
In her submissions the plaintiff argues that there is no reasonable explanation for the delay. The burden to explain the delay lies with the applicant to present a reasonable explanation for the delay. The applicant relies on the Supreme Court case of County Executive of Kisumu -vs- County Government of Kisumu and 8 others (2017) eKLR.
The respondent argues that the Advocate remuneration order limits the timelines for filing a reference to only 14 days. The applicants filed the reference after 28 days from the date of delivery of the ruling. The respondent relies on the case of Habo Agencies Ltd -vs- Wilfred Odhiambo Musingo (2020) eKLR.
Ultimately the respondent argues that the delay of 14 days is inordinate and inexcusable being that no reasonable explanation has been given by the applicant.
The respondent further argues that the intended reference is frivolous as the decision of the taxing officer was just as the respondent’s suit was dismissed at the preliminary stage and the applicant had not filed any response to the Originating Summons. That there was no complexity in the matter as no defence was filed. The plaintiff respondent argues that their value of the subject matter was not disclosed.
The Court of Appeal in Kenya Ports Authority vs. Silas Obengele Civil Application No. Nai. 297 of 2004 [2006] 2 KLR 112 stated that:
“Whereas it is now settled that whenever there is a delay, even for one day, there must be some explanation for it otherwise an extension may not be granted where there was material before the single judge from which he could and did conclude that the delay or the periods of delay…the full bench will not interfere”
Odek JA. in George Kiptabut Lelei & another vs. Fanikiwa Limited [2019] eKLR stated:
“In arriving at my decision, I reiterate that a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons upon which discretion can be favorably exercised…”
I have considered the application, replying affidavit and rival submissions and do find that it is fact that the applicant delayed for a period of 14 days to file a reference. He filed the reference 28 days after the ruling and yet he was to file within 14 days. The ruling was ready and typed on the date of delivery. The applicant has not explained to the satisfaction of the court why he took 28 days to file the reference and yet the ruling was ready on the date of delivery. The applicants counsel was in court when the ruling was delivered. Moreover, the applicants counsel has relied on mistake but the said mistake is not explained.
This court finds that there is a delay in filing the reference and no reason is given for the delay. The applicant does not state to this court the exact date that ruling was supplied to the applicant. There are no letters requesting for the same from the Deputy Registrar.
On the issue as to whether the reference was a likelihood of success, I do find that the originating summons was filed without the disclosure of the value of the subject matter. The taxing officer exercised her discretion from the materials before her and taxed the instruction fees at 97, 575. There was no evidence that the matter was complex. Moreover, there is no basis that the award of instruction fees of Kshs.45,000 is an injustice to the applicant.
The upshot of the above is that the application is dismissed with costs.
The application is supported by the affidavit of Karungu Peninah and grounds that the honorable court issued a ruling dated 27th March 2024 on the party to party costs dated 24th July 2023 and the same was taxed at Kshs.97575. The honorable taxing officer advised that they would get the reasons for the dispensation on taxation as it was delivered in court in the substratum of the ruling upon acquisition.
They proceeded to acquire the ruling therein, unfortunately, due to the pressures and backlog of work the same was received by the advocate on record post the requisite time for filing a Reference and the same was not intentional nor meant to prejudice any party nor delay the court proceedings nor malign the dignity of this onorable court.
The Defendant/Applicant is dissatisfied with the decision of the taxing officer and is desirous of filing a Reference against the same but the time for filing the Reference has since lapsed.
The intended Reference is arguable and the orders of stay sought is intended to safeguard the interests of Applicant by preventing the execution of the decision of the taxing officer against which a Reference is sought to be preferred.
The matter herein was complex with multiple suits namely ELC No. 342 of 2012 Formerly Nakuru HCCC 271 of 2012 And Nakuru ELC 343 Of 2012 Formerly Nakuru HCCC 304 of 2012 (OS), where the Plaintiff/Applicant sought consolidation vide Application dated 11th February, 2023, and the same was dismissed.
The suit herein is on ownership of L.R.NO 13287/178 which is plot excised from the whole L.R.NO 13287/127, hence a highly complex and emotive matter that has been in court for a period of more than 10 years.
The taxing officer erred in law and fact by failing to acknowledge that the Plaintiff/Respondent failed to appreciate and aid the court in achieving its overriding objectives in the delivery of justice and in this capacity the Plaintiff/Respondent has occasioned prejudice, mental anguish and irreparable loss upon the Applicant/Defendant for a period of 10 years.
According to the applicant, no prejudice will be occasioned on the Respondent if this application is allowed. However, if this application is not allowed, the Applicant stands to suffer huge loss and will be shut out from ventilating its Reference, which will result in serious miscarriage of justice.
In the supporting affidavit the applicant’s advocate states that she attended court on 27th March 2024 when the Deputy Registrar delivered her ruling by reading out the taxing dispensation. The bill dated 24th July 2022 was taxed at Ksh.97,575and the reasons of the ruling were to be found in the substratum of the ruling. She requested for stay of execution but the same was declined. There was a delay in procuring the ruling resulting in delay in filing the reference necessitating this application for enlargement of time to file a reference.
The applicant’s counsel states that failure to file the reference was occasioned by an honest Mistake on her part in failing to keep track on the process of the acquisition of the said ruling. She states that the reference is arguable as the taxing officer awarded an extremely low figure as instruction fees of Kshs45000 and yet the matter was complex and had been in court for more than 10 years and that it revolves on land which is highly emotive.
In the replying affidavit of George Ogembo, advocate for the respondent, he states that the ruling in the bill of costs dated 24th July 2023 was delivered on 27th March 2024 and the bill of costs was taxed at Ksh 97,575. The applicants counsel was present during the ruling and that the ruling was typed and ready for collection on the very date it was delivered. According to the respondent, the reasons given by the applicant are false. The respondent states that the applicant has not advanced the reasons for failure to file the reference in time and that he has not explained the mistake that led to failure to file the reference. The application was filed 28 days after the ruling which is inordinate and in excusable.
The respondent states that the reasons given by the taxing officer for giving that figure are that the matter was concluded at a preliminary stage because the respondent did not file a response and therefore the suit was not defended. There was no complexity in the matter because it was not defended.
In her submissions the plaintiff argues that there is no reasonable explanation for the delay. The burden to explain the delay lies with the applicant to present a reasonable explanation for the delay. The applicant relies on the Supreme Court case of County Executive of Kisumu -vs- County Government of Kisumu and 8 others (2017) eKLR.
The respondent argues that the Advocate remuneration order limits the timelines for filing a reference to only 14 days. The applicants filed the reference after 28 days from the date of delivery of the ruling. The respondent relies on the case of Habo Agencies Ltd -vs- Wilfred Odhiambo Musingo (2020) eKLR.
Ultimately the respondent argues that the delay of 14 days is inordinate and inexcusable being that no reasonable explanation has been given by the applicant.
The respondent further argues that the intended reference is frivolous as the decision of the taxing officer was just as the respondent’s suit was dismissed at the preliminary stage and the applicant had not filed any response to the Originating Summons. That there was no complexity in the matter as no defence was filed. The plaintiff respondent argues that their value of the subject matter was not disclosed.
The Court of Appeal in Kenya Ports Authority vs. Silas Obengele Civil Application No. Nai. 297 of 2004 [2006] 2 KLR 112 stated that:
“Whereas it is now settled that whenever there is a delay, even for one day, there must be some explanation for it otherwise an extension may not be granted where there was material before the single judge from which he could and did conclude that the delay or the periods of delay…the full bench will not interfere”
Odek JA. in George Kiptabut Lelei & another vs. Fanikiwa Limited [2019] eKLR stated:
“In arriving at my decision, I reiterate that a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons upon which discretion can be favorably exercised…”
I have considered the application, replying affidavit and rival submissions and do find that it is fact that the applicant delayed for a period of 14 days to file a reference. He filed the reference 28 days after the ruling and yet he was to file within 14 days. The ruling was ready and typed on the date of delivery. The applicant has not explained to the satisfaction of the court why he took 28 days to file the reference and yet the ruling was ready on the date of delivery. The applicants counsel was in court when the ruling was delivered. Moreover, the applicants counsel has relied on mistake but the said mistake is not explained.
This court finds that there is a delay in filing the reference and no reason is given for the delay. The applicant does not state to this court the exact date that ruling was supplied to the applicant. There are no letters requesting for the same from the Deputy Registrar.
On the issue as to whether the reference was a likelihood of success, I do find that the originating summons was filed without the disclosure of the value of the subject matter. The taxing officer exercised her discretion from the materials before her and taxed the instruction fees at 97, 575. There was no evidence that the matter was complex. Moreover, there is no basis that the award of instruction fees of Kshs.45,000 is an injustice to the applicant.
The upshot of the above is that the application is dismissed with costs.