1. This ruling is on the Notice of motion application dated 7 th July,2026 filed by Geonet Communications Limited, the Applicant, seeking:
a) Spent.
b) Spent.
c) THAT pending the hearing and determination of the Reference, there be a stay of the taxation of the Advocate-Client Bill of Costs dated 22 nd July 2025.
d) THAT this Honourable Court be pleased to enlarge time under Rule 11(4) of the Advocates (Remuneration) Order and grant leave to the Applicant to file and serve the Reference out of time against the ruling delivered on 5 th June 2026.
e) THAT the Reference annexed to this Application be deemed as duly filed and served upon payment of the requisite court fees.
f) THAT the costs of this Application abide the outcome of the Reference.
Applicant’s case
2. The application is supported the affidavit of Ongeri Oyugi sworn on even date and the grounds on the face of the application.
3. The Applicant asserts that the Honourable Deputy Registrar delivered the impugned ruling on 5 th June 2026 without notice to the Applicant or its advocates and neither the Applicant nor its advocates were aware that the ruling had been delivered. Consequently, the statutory period prescribed under Rule 11 of the Advocates (Remuneration) Order elapsed before the Applicant became aware of the existence of the ruling.
4. The Applicant asserts that the parties herein had entered into a valid written retainer agreement dated 14 th June,2022 and addendum dated 13 th February,2024 ousting the jurisdiction of the taxing master yet the Respondents filed a bill of costs dated 22 nd July,2025. It is upon the Deputy Registrar hearing parties that gave rise to the Ruling of 5 th June, 2026 dismissing the Applicants objection and which gives rise to the instant application.
5. The Applicant asserts that the delay in filing the Reference was neither deliberate, intentional nor inordinate but was occasioned solely by the absence of notice of delivery of the ruling and the inadvertent failure by counsel to discover that the ruling had already been delivered.
6. The Applicant avers that immediately upon learning of the existence of the ruling and the scheduled taxation, the Applicant moved with diligence and without unreasonable delay to seek the intervention of this Honourable Court.
7. That the intended Reference raises serious and arguable questions of law regarding the interpretation of section 45 of the Advocates Act and whether the existence of a written remuneration agreement ousts the jurisdiction of the Taxing Master and Unless stay is granted, the intended taxation will proceed and may render the Reference nugatory.
8. The Applicant avers that no prejudice incapable of compensation by an award of costs shall be occasioned to the Respondent if the orders sought are granted.
Respondent’s case
9. The Respondent filed a Notice of Preliminary Objection stating that :
a) THAT the Application is fatally incompetent having been supported by a defective Affidavit sworn by the Advocate B. ONGERI OYUGI himself which alleges contentious and disputed facts including extensive hearsay allegations, in breach of Rule 8 of the Advocates (Practice) Rules as read with Order 19 Rules 2 and 3 (1) of the Civil Procedure Rules; with no competent reason why the Client did not swear the affidavit.
b) THAT consequently, the supporting affidavit is liable for striking out summarily and with it, the entire application is equally liable for striking out.
10. The Respondent further filed a replying affidavit dated 14 th July, 2026 opposing the Application.
11. The Respondent reiterates the contents of the Preliminary Objection as filed and avers that, taxation of a bill of costs does not cause any loss as it only ascertains the quantum of costs payable and that the Applicant has not given a reason for stay of taxation where the Applicant could advance their arguments in their bill of cost.
12. The respondent states that looking at the procedural history of the matter which commenced from 22 nd July,2025 , has had several applications by the Applicant i.e. the one for 5 th September,2025 ,which was subject to the Deputy Registrars ruling ,the Applicant has therefore not provided reasons for the delay in filing this reference.
13. The Respondent believes that the jurisdiction Ruling delivered on 05 th June 2026 is factually correct and legally unimpeachable on all accounts. In it, the Deputy Registrar considered the Applicant's objections to jurisdiction and correctly dismissed the application dated 05 th September 2025 for want of merit and in finding that the retainer agreement and addendum provide no fixed fees and remuneration for the Respondent and it only established an advocate – client relationship.
14. The Respondent deposes that from a substantive position, the Applicant has failed to demonstrate any triable issue even if leave is granted. Particularly, the case documentation themselves show that intended Reference fails to raise any credible or triable issue regarding the jurisdiction Ruling delivered on 05 th June 2026; to warrant granting leave to file the intended Reference out of time that the mere filing of the intended Reference will serve no practical purpose where the purported retainer agreement and its addendum do not contain any fixed fee capable of ousting the Taxing Master's jurisdiction and this therefore does not warrant the Court to indulge the client and grant leave to lodge the intended Reference out of time.
15. The Respondent deposes that the Applicant has only alleged delayed delivery of the ruling as a basis of its application but has annexed no substantive proof of the same and that since the ruling related to the Applicants application, they ought to have been more vigilant I following up with the outcome and that the intended reference is a non-starter and should not be allowed.
16. Further, the Respondent states that this Court should not entertain the Applicants intent to frustrate and prolong taxation through frivolous applications and should uphold the jurisdiction ruling of 5 th June,2026 and that no prejudice shall be occasioned to the Applicant who can still dispute the Bill of costs as filed through submissions , the Respondent on the other end continues to suffer prejudice .
Applicant’s submissions
17. The Applicant filed submissions in support of its Notice of Motion dated 7 th July 2026 seeking enlargement of time under Rule 11(4) of the Advocates (Remuneration) Order to enable it lodge a Reference against the ruling of the learned Deputy Registrar delivered on 3 rd July 2026. The Applicant also opposes the Respondent’s Preliminary Objection dated 10 July 2026 , contending that it is misconceived, procedurally improper and does not satisfy the threshold of a proper preliminary objection.
18. The Applicant explains that the dispute arose from taxation proceedings in which it did not attend Court on 5 th June 2026 because it had no notice that the ruling had been scheduled for delivery. According to the Applicant, the application was filed approximately 18 days after the ruling , and the delay arose because it only became aware of the ruling on 3 rd July 2026. It therefore argues that the delay was neither inordinate nor deliberate.
19. The Applicant identifies six issues for determination:
I. Whether the Court has jurisdiction to enlarge time under Rule 11(4).
II. Whether sufficient cause has been shown for enlargement of time.
III. Whether the Preliminary Objection raises a proper point of law.
IV. Whether the Supporting Affidavit is incompetent merely because it was sworn by the Applicant’s advocate.
V. Whether the Replying Affidavit raises matters capable of defeating the application; and
VI. Who should bear costs.
20. On jurisdiction and enlargement of time , the Applicant submits that Rule 11(4) expressly grants the Court discretion to enlarge time even after the prescribed period has expired. It relies, inter alia, on Bernard Odero & Company Advocates v Simiyu [2025] KEELRC 1009 (KLR), where the Court recognized that the discretion to enlarge time must be exercised judicially in the interests of justice.
21. Regarding sufficient cause, the Applicant relies on the established considerations governing extension of time, namely the length of delay, reasons for the delay, whether the delay is inordinate, whether the intended matter is arguable, prejudice to the opposing party, and whether the applicant acted without undue delay. The Applicant maintains that the approximately 18-day delay was short, that it gave a specific explanation for the delay, and that it acted immediately upon learning of the ruling. It further contends that the intended Reference raises an arguable issue concerning whether the Taxing Master retained jurisdiction to tax the Advocate–Client Bill notwithstanding an alleged written remuneration agreement under section 45 of the Advocates Act.
22. The Applicant emphasizes that, at the extension of time stage, the Court is not being invited to determine the merits of the intended Reference , but merely whether the Applicant should be permitted to challenge the taxation. It argues that denying enlargement would shut it out from challenging a ruling which it says it did not know had been delivered, whereas the Respondent has not demonstrated prejudice incapable of being compensated by costs. The Applicant therefore urges the Court to favour substantive determination over procedural technicality.
23. The Respondent’s Preliminary Objection attacks the application principally on the basis that the Supporting Affidavit was sworn by the Applicant’s advocate and allegedly contains contentious or hearsay matters. The Applicant submits that this does not constitute a proper preliminary objection within the principles in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. A preliminary objection must raise a pure point of law capable of determination on the assumption that the opposing party’s pleaded facts are correct and must not require factual inquiry or the exercise of judicial discretion.
24. According to the Applicant, determining whether its advocate improperly swore the affidavit would require the Court to examine the affidavit, the Court record and the circumstances surrounding delivery of the ruling. Those are factual inquiries and therefore cannot properly be resolved through a preliminary objection. The Applicant accordingly characterizes the objection as an attempt to convert an evidentiary complaint into a jurisdictional or preliminary point of law.
25. The Applicant further argues that Rule 8 of the Advocates (Practice) Rules does not impose an absolute prohibition against an advocate swearing an affidavit in proceedings in which the advocate acts . Rather, the prohibition concerns contentious matters where counsel may be required to give evidence personally.
26. The Applicant maintains that its advocate merely deposed to matters concerning the conduct and procedural history of the proceedings, including delivery of the ruling, absence of notice, when the ruling was discovered and the steps taken thereafter. These matters were allegedly within counsel's personal knowledge arising from his conduct of the proceedings. The Applicant relies on authorities including Adieleke v Mediamax Network Limited [2026] KEHC 278 (KLR) and Maina v Macharia [2025] KEHC 13674 (KLR) for the proposition that counsel may depone to matters within personal knowledge arising from the conduct of a matter.
27. Even assuming that an isolated paragraph contained an inadmissible statement, the Applicant argues that the appropriate remedy would be to disregard or strike out the offending portion , rather than invalidate the entire application. It consequently submits that the Respondent has failed to demonstrate that the Supporting Affidavit is incurably defective.
28. The Applicant argues that the Respondent’s Replying Affidavit does not displace the essential facts supporting enlargement of time, particularly the alleged absence of notice of delivery of the ruling, the date on which the Applicant became aware of it, and the prompt filing of the application thereafter. The Applicant maintains that the Court’s inquiry at this stage is simply whether sufficient cause has been demonstrated for enlargement of time, not whether the intended Reference will ultimately succeed.
29. It reiterates that the delay was short and explained; there is an arguable question regarding the Taxing Officer's jurisdiction; the Respondent has demonstrated no prejudice incapable of compensation by costs; and refusing extension would permanently prevent the Applicant from challenging the taxation without appellate/reference scrutiny.
30. The Applicant consequently prays that the Court, dismiss the Preliminary Objection dated 10 July 2026 with costs, dismiss the objections raised against the Replying Affidavit and allow the Notice of Motion dated 7 July 2026 with costs to the Applicant.
Respondent’s submissions
31. The Advocate opposes the Client’s application dated 7 th July 2026. The Advocate states that the Bill of Costs was filed on 22 nd July 2025 and that the Client subsequently challenged the taxing officer’s jurisdiction through an application dated 5 th September 2025. That application was heard on its merits and dismissed on 5 th June 2026. According to the Advocate, the Client’s present application is merely an attempt to further delay taxation of the Bill of Costs.
32. The Advocate identifies a single issue for determination.
I. Whether the Client has established sufficient cause to warrant the Court's discretionary enlargement of time under Rule 11(4) of the ARO .
33. It opposes the application on three principal grounds.
34. Failure to satisfactorily explain the delay. The Advocate submits that extension of time is an equitable and discretionary remedy which is not granted automatically. The Client must provide sufficient and credible reasons explaining its failure to comply with the prescribed timelines. It disputes the Client’s contention that it was unaware of the ruling until 3 RD July 2026. According to the Advocate, the Court Registry issued multiple notices concerning delivery of the ruling and ultimately uploaded the ruling on CTS on 5 th June 2026, whereupon the parties were notified that it had been posted. It therefore maintains that the Client had actual notice of the ruling.
35. The Advocate also disputes the Client’s assertion that the delay was only 18 days . It calculates that the application of 7 th July 2026 was filed 32 days after the ruling of 5 th June 2026, while the 14-day period prescribed by Rule 11(2) had expired on 19 th June 2026.
36. Further, on 2 nd July 2026, both parties appeared before the Deputy Registrar for directions on taxation. The Advocate emphasizes that the Client did not complain that it had been unaware of the ruling, did not indicate an intention to lodge a Reference, and instead sought timelines for filing submissions on taxation. The Advocate therefore argues that the Client acquiesced in the taxation proceedings and should be estopped from subsequently seeking to halt them.
37. The Advocate additionally argues that because it was the Client’s own jurisdictional application that was awaiting ruling, the Client and its counsel had a duty to follow up its outcome. It says there is no evidence that the Client made any effort to follow up after 30 th April 2026, when the ruling was initially scheduled, despite subsequent notices. The application filed five days after taxation directions were given is consequently characterized by the Advocate as an afterthought.
38. The Advocate relies particularly on Gatiti v Teachers Service Commission [2024] KECA 379 (KLR) for the proposition that discretion to enlarge time is exercised according to settled principles and that a litigant has an obligation to keep abreast of the progress of their case. It also relies on Ombuna Ongeri & Co. Advocates v Corporate Insurance Co. Ltd [2026] KEHC 12619 (KLR), where the Court emphasized that an applicant bears the burden of satisfactorily explaining the delay and demonstrating diligence.
39. Intended Reference allegedly raises no arguable issue or prejudice. The Advocate submits that the Client has failed to demonstrate any viable or arguable issue-warranting enlargement of time or any prejudice that would arise if taxation proceeds. The central issue in the intended Reference concerns whether the parties had a fee agreement capable of ousting the taxing officer’s jurisdiction under section 45 of the Advocates Act. The Advocate argues that the Deputy Registrar correctly found that, although the documents evidenced an advocate-client arrangement involving monthly installments, they did not specify a precise or final legal fee for Constitutional Petition No. E495 of 2023. Consequently, there was no complete remuneration agreement capable of ousting the taxing officer's jurisdiction and jurisdiction under section 48 of the Advocates Act and the ARO remained intact.
40. According to the Advocate, the installments arrangement was open-ended, containing neither a final figure nor a defined duration. It therefore could not satisfy section 45(1). The Advocate argues that the intended Reference would consequently serve no practical purpose because the Client has not identified any specific amount allegedly agreed upon as the full professional fee.
41. On prejudice, the Advocate submits that taxation merely determines the quantum of fees payable and gives the Client an opportunity to challenge individual items in the Bill of Costs. It relies on Deposit Protection Fund v Rosaline Njeri Macharia [2006] KEHC 1536 (KLR) for the proposition that taxation itself does not occasion substantial loss because its immediate effect is simply to ascertain the amount payable.
42. The Advocate argues that taxation should therefore proceed because the jurisdictional objection has already been determined and directions for taxation were issued on 2 nd July 2026. It contends that granting leave would merely delay recovery of fees which have remained outstanding for a considerable period.
43. Competence of the Supporting Affidavit. The Advocate's third argument is that the Client’s application is fatally incompetent because its Supporting Affidavit was sworn by its advocate, B. Ongeri Oyugi, rather than by the Client. It invokes Rule 8 of the Advocates (Practice) Rules, together with Order 19 Rules 2 and 3(1) of the Civil Procedure Rules.
44. The Advocate contends that the affidavit contains contentious factual allegations concerning the circumstances surrounding the failure to lodge the Reference within time. It further complains that the affidavit uses plural expressions such as “ we”, “our” and “us”, allegedly contrary to the requirement that an affidavit be expressed in the first person. It argues that the affidavit fails to identify the sources of allegedly hearsay information or the other persons for whom the deponent purportedly speaks. On that basis, it asks the Court to strike out the affidavit under Order 19 Rule 6.
45. The Advocate relies on Mbugua & 3 Others v Turi Gardens Limited [2025] KEELC 34 (KLR) for the principle that an advocate should not swear an affidavit on contentious evidentiary matters because doing so may expose counsel to cross-examination and require counsel to step down from acting in the matter.
46. Accordingly, the Advocate asks the Court to dismiss the Client’s application dated 7 th July 2026 with costs and direct that taxation of the Advocate–Client Bill of Costs proceed on its merits, in accordance with the Deputy Registrar’s ruling of 5 th June 2026.
Analysis and determination
47. I have carefully considered the application, the affidavits on record, the parties’ submissions, and the authorities cited.
48. Two issues present themselves for determination:
(i) Whether the respondent’s preliminary objection has merit .
(ii) Whether the application dated 7 th July, 2026 has merit.
Whether the Respondent’s Preliminary Objection has merit
49. In the case of Garden Square Ltd v Kogo & Anor 2000 (KLR) 1695, Ringera J (as he then was) stated that what constitutes a true preliminary objection is a pure point of law which if successfully taken would have the effect of disposing of the suit or application.
50. This was in line with the decisions of the then Court of Appeal for East Africa in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 in which court stated as follows:
“A preliminary objection is in the nature of what used to be demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.”
51. The Supreme Court again considered the position of parties resorting to the use of Preliminary Objections and pronounced itself as follows in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR : -
“The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scares judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”
52. The Respondent has stated that the Applicants Advocate Ongeri Oyugi deposed on contentious and disputed facts in breached of Rule 8 of the Advocate Practice Rules as read with Order 19 Rules 2 and 3 (1) of the Civil Procedure Rules and for this reason, the application should be struck out.
53. A perusal of the Supporting affidavit by counsel for the Applicants shows in paragraphs 1-3, the Advocate was counsel on record hence conversant with the case, he deposes that he has the authority of the Applicant Company to swear the affidavit and that where he lacks personal knowledge, he would provide the source of information.
54. It is trite law that Advocates should only swear an affidavit onto issues he/she is fully conversant and/or had personal knowledge to otherwise Advocates should as much as possible avoid indulging into the arena of litigation otherwise their averments would be termed as hearsay and/or them being summoned to testify as witnesses which is extremely awkward if not embarrassing as far as conflict of interest is concerned.
55. The advocate proceeds in paragraph 4-5 to discuss the filings by both parties and the ruling of the court, which are matters of public knowledge of which can be accessed by every member of the public, he proceeds from paragraph 9-23 revealing sources of information after receiving instructions and hence being in conduct of the matter. This paragraphs, I find are sworn of proper instructions, disclosure and information to the counsel.
56. Under Rule 8 of the Advocates (practice) Rules, 1966 it is provided:-
"No advocate may appear as such before any Court or tribunal in any matter in which he has reason to believe that he may be required as witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear.”
57. Having gone through the said Affidavits, the Court notes that the averments contained in paragraph s 6-8 consist of pure hearsay as counsel has stated in the affidavit that he only received instructions after the Applicant learnt of the ruling on 3 rd July, 2026. He therefore was in no position to know of the developments described in the 3 paragraphs before receiving instructions in the matter.
58. In the case of Magnolia PVT Limited vs Synermed Pharmaceuticals (K) Ltd (2018) eKLR , the Court dealing with similar issue states as follows:-
" Whereas there is nothing barring an advocate from swearing an affidavit in appropriate cases, where the matters deposed to are agreed or on purely legal positions, advocates should refrain from the temptation of being the avenue through which disputed facts are proclaimed. The rationale for the said principle is to insulate the advocate, an officer of the Court, from the vagaries of litigation which, on occasions may be very unpleasant. By swearing an affidavit on such issues an advocate subjects himself to the process of cross-examination thus removing him from his role of legal counsel to that of a witness, a scenario which should be avoided like plague. In my view, however innocent an averment may be, counsel should desist from the temptation to be the pipe stem through which such an averment is transmitted."
59. However, the Applicant is deserving of the other prayers and it would be unfair to the Applicant Company to dismiss its application because of a technicality and mistake by an officer of this court who ought to have known better.
60. For these reasons, I do hereby direct that all the averments contained in paragraphs 6-8 of the supporting affidavit being not sufficiently direct evidence within the personal knowledge of the Advocate be and are hereby struck out from the said supporting affidavit.
61. I am guided by the decision in Tom Okello Obondo V. National Social Security Fund, HCCC No. 1759 of 1999 where the plaintiff had raised a preliminary objection arguing that certain affidavits were defective and should be expunged from the record; and Ringera, J (as he then was) ruled:
“The upshot of this matter is that I find the irregularity of form complained of is not fatal. The same can be excused by the Court in its discretion. And as I find no prejudice to the plaintiff occasioned by such error, I excuse the same and overrule the preliminary objection.”
62. As the Affidavits by the Applicant’s Advocate bordered on both contentious legal and factual issues within his knowledge, the Court has considered the same and further cautions the Advocate.
63. I further hold that the Notice of Preliminary Objection dated 10 th July, 2026 is without merit, I dismiss the same with no orders as to costs.
Leave to file Reference out of time
64. This Court is vested with discretionary power to enlarge the time for filing a reference under Rule 11(4) of the Advocates (Remuneration) Order . The Rule provides, in part, that:
“ The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or (2) for the taking of any step; such application for enlargement may be made notwithstanding that the time sought to be enlarged may have already expired.” The applicable threshold for the exercise of such discretion is the demonstration of “sufficient reason” or “sufficient cause.”
65. Our superior courts have articulated clear guiding principles governing the exercise of this discretion, which the Court must consider in determining whether to grant the relief sought.
66. The Supreme Court in Nicholas K. Salat v IEBC & 7 others stated that extension of time is not a right of a litigant, but an equitable remedy available only to a deserving party at the court’s discretion.
“The court must consider the circumstances of each case, bearing in mind factors such as:
(i) the length of delay;
(ii) the reason for the delay, whether the delay is explained and if the explanation is plausible;
(iii) whether there is an arguable case on the merits of the intended action (in other words, if the applicant has a prima facie meritorious claim or defence);
(iv) the degree of prejudice that the respondent would suffer if the extension is granted vis-à-vis the prejudice to the applicant if denied; and
(v) any other relevant considerations such as the conduct of the parties and the need to facilitate orderly administration of justice.
These factors are consistent with numerous Court of Appeal decisions which have emphasized that the discretion to extend time should be exercised judicially and not whimsically, with the overarching goal being to dispense substantive justice.
67. The Ruling herein was delivered on 5 th June, 2026. Pursuant to Rule 11 of the Advocates (Remuneration) Order , the Applicant, as the client, was required to issue a written notice of objection to the taxing officer within fourteen (14) days, and thereafter, upon receipt of the taxing officer’s reasons, to file a reference in the High Court within a further fourteen (14) days. These timelines were not complied with.
68. Instead, the Applicant filed this application 35 days after delivery of the ruling seeking enlargement of time was. On its face, the delay is considerable. It would therefore be inaccurate to assert that the Applicant was entirely indolent or indifferent to its rights. Upon finding out that ruling was delivered, the Applicant acted with reasonable promptitude by filing the present application on 7 th July, 2026 merely 3 days later. There is no evidence of undue delay or lethargy after discovery of the ruling and subsequent taxation dates.
[...truncated]
a) Spent.
b) Spent.
c) THAT pending the hearing and determination of the Reference, there be a stay of the taxation of the Advocate-Client Bill of Costs dated 22 nd July 2025.
d) THAT this Honourable Court be pleased to enlarge time under Rule 11(4) of the Advocates (Remuneration) Order and grant leave to the Applicant to file and serve the Reference out of time against the ruling delivered on 5 th June 2026.
e) THAT the Reference annexed to this Application be deemed as duly filed and served upon payment of the requisite court fees.
f) THAT the costs of this Application abide the outcome of the Reference.
Applicant’s case
2. The application is supported the affidavit of Ongeri Oyugi sworn on even date and the grounds on the face of the application.
3. The Applicant asserts that the Honourable Deputy Registrar delivered the impugned ruling on 5 th June 2026 without notice to the Applicant or its advocates and neither the Applicant nor its advocates were aware that the ruling had been delivered. Consequently, the statutory period prescribed under Rule 11 of the Advocates (Remuneration) Order elapsed before the Applicant became aware of the existence of the ruling.
4. The Applicant asserts that the parties herein had entered into a valid written retainer agreement dated 14 th June,2022 and addendum dated 13 th February,2024 ousting the jurisdiction of the taxing master yet the Respondents filed a bill of costs dated 22 nd July,2025. It is upon the Deputy Registrar hearing parties that gave rise to the Ruling of 5 th June, 2026 dismissing the Applicants objection and which gives rise to the instant application.
5. The Applicant asserts that the delay in filing the Reference was neither deliberate, intentional nor inordinate but was occasioned solely by the absence of notice of delivery of the ruling and the inadvertent failure by counsel to discover that the ruling had already been delivered.
6. The Applicant avers that immediately upon learning of the existence of the ruling and the scheduled taxation, the Applicant moved with diligence and without unreasonable delay to seek the intervention of this Honourable Court.
7. That the intended Reference raises serious and arguable questions of law regarding the interpretation of section 45 of the Advocates Act and whether the existence of a written remuneration agreement ousts the jurisdiction of the Taxing Master and Unless stay is granted, the intended taxation will proceed and may render the Reference nugatory.
8. The Applicant avers that no prejudice incapable of compensation by an award of costs shall be occasioned to the Respondent if the orders sought are granted.
Respondent’s case
9. The Respondent filed a Notice of Preliminary Objection stating that :
a) THAT the Application is fatally incompetent having been supported by a defective Affidavit sworn by the Advocate B. ONGERI OYUGI himself which alleges contentious and disputed facts including extensive hearsay allegations, in breach of Rule 8 of the Advocates (Practice) Rules as read with Order 19 Rules 2 and 3 (1) of the Civil Procedure Rules; with no competent reason why the Client did not swear the affidavit.
b) THAT consequently, the supporting affidavit is liable for striking out summarily and with it, the entire application is equally liable for striking out.
10. The Respondent further filed a replying affidavit dated 14 th July, 2026 opposing the Application.
11. The Respondent reiterates the contents of the Preliminary Objection as filed and avers that, taxation of a bill of costs does not cause any loss as it only ascertains the quantum of costs payable and that the Applicant has not given a reason for stay of taxation where the Applicant could advance their arguments in their bill of cost.
12. The respondent states that looking at the procedural history of the matter which commenced from 22 nd July,2025 , has had several applications by the Applicant i.e. the one for 5 th September,2025 ,which was subject to the Deputy Registrars ruling ,the Applicant has therefore not provided reasons for the delay in filing this reference.
13. The Respondent believes that the jurisdiction Ruling delivered on 05 th June 2026 is factually correct and legally unimpeachable on all accounts. In it, the Deputy Registrar considered the Applicant's objections to jurisdiction and correctly dismissed the application dated 05 th September 2025 for want of merit and in finding that the retainer agreement and addendum provide no fixed fees and remuneration for the Respondent and it only established an advocate – client relationship.
14. The Respondent deposes that from a substantive position, the Applicant has failed to demonstrate any triable issue even if leave is granted. Particularly, the case documentation themselves show that intended Reference fails to raise any credible or triable issue regarding the jurisdiction Ruling delivered on 05 th June 2026; to warrant granting leave to file the intended Reference out of time that the mere filing of the intended Reference will serve no practical purpose where the purported retainer agreement and its addendum do not contain any fixed fee capable of ousting the Taxing Master's jurisdiction and this therefore does not warrant the Court to indulge the client and grant leave to lodge the intended Reference out of time.
15. The Respondent deposes that the Applicant has only alleged delayed delivery of the ruling as a basis of its application but has annexed no substantive proof of the same and that since the ruling related to the Applicants application, they ought to have been more vigilant I following up with the outcome and that the intended reference is a non-starter and should not be allowed.
16. Further, the Respondent states that this Court should not entertain the Applicants intent to frustrate and prolong taxation through frivolous applications and should uphold the jurisdiction ruling of 5 th June,2026 and that no prejudice shall be occasioned to the Applicant who can still dispute the Bill of costs as filed through submissions , the Respondent on the other end continues to suffer prejudice .
Applicant’s submissions
17. The Applicant filed submissions in support of its Notice of Motion dated 7 th July 2026 seeking enlargement of time under Rule 11(4) of the Advocates (Remuneration) Order to enable it lodge a Reference against the ruling of the learned Deputy Registrar delivered on 3 rd July 2026. The Applicant also opposes the Respondent’s Preliminary Objection dated 10 July 2026 , contending that it is misconceived, procedurally improper and does not satisfy the threshold of a proper preliminary objection.
18. The Applicant explains that the dispute arose from taxation proceedings in which it did not attend Court on 5 th June 2026 because it had no notice that the ruling had been scheduled for delivery. According to the Applicant, the application was filed approximately 18 days after the ruling , and the delay arose because it only became aware of the ruling on 3 rd July 2026. It therefore argues that the delay was neither inordinate nor deliberate.
19. The Applicant identifies six issues for determination:
I. Whether the Court has jurisdiction to enlarge time under Rule 11(4).
II. Whether sufficient cause has been shown for enlargement of time.
III. Whether the Preliminary Objection raises a proper point of law.
IV. Whether the Supporting Affidavit is incompetent merely because it was sworn by the Applicant’s advocate.
V. Whether the Replying Affidavit raises matters capable of defeating the application; and
VI. Who should bear costs.
20. On jurisdiction and enlargement of time , the Applicant submits that Rule 11(4) expressly grants the Court discretion to enlarge time even after the prescribed period has expired. It relies, inter alia, on Bernard Odero & Company Advocates v Simiyu [2025] KEELRC 1009 (KLR), where the Court recognized that the discretion to enlarge time must be exercised judicially in the interests of justice.
21. Regarding sufficient cause, the Applicant relies on the established considerations governing extension of time, namely the length of delay, reasons for the delay, whether the delay is inordinate, whether the intended matter is arguable, prejudice to the opposing party, and whether the applicant acted without undue delay. The Applicant maintains that the approximately 18-day delay was short, that it gave a specific explanation for the delay, and that it acted immediately upon learning of the ruling. It further contends that the intended Reference raises an arguable issue concerning whether the Taxing Master retained jurisdiction to tax the Advocate–Client Bill notwithstanding an alleged written remuneration agreement under section 45 of the Advocates Act.
22. The Applicant emphasizes that, at the extension of time stage, the Court is not being invited to determine the merits of the intended Reference , but merely whether the Applicant should be permitted to challenge the taxation. It argues that denying enlargement would shut it out from challenging a ruling which it says it did not know had been delivered, whereas the Respondent has not demonstrated prejudice incapable of being compensated by costs. The Applicant therefore urges the Court to favour substantive determination over procedural technicality.
23. The Respondent’s Preliminary Objection attacks the application principally on the basis that the Supporting Affidavit was sworn by the Applicant’s advocate and allegedly contains contentious or hearsay matters. The Applicant submits that this does not constitute a proper preliminary objection within the principles in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. A preliminary objection must raise a pure point of law capable of determination on the assumption that the opposing party’s pleaded facts are correct and must not require factual inquiry or the exercise of judicial discretion.
24. According to the Applicant, determining whether its advocate improperly swore the affidavit would require the Court to examine the affidavit, the Court record and the circumstances surrounding delivery of the ruling. Those are factual inquiries and therefore cannot properly be resolved through a preliminary objection. The Applicant accordingly characterizes the objection as an attempt to convert an evidentiary complaint into a jurisdictional or preliminary point of law.
25. The Applicant further argues that Rule 8 of the Advocates (Practice) Rules does not impose an absolute prohibition against an advocate swearing an affidavit in proceedings in which the advocate acts . Rather, the prohibition concerns contentious matters where counsel may be required to give evidence personally.
26. The Applicant maintains that its advocate merely deposed to matters concerning the conduct and procedural history of the proceedings, including delivery of the ruling, absence of notice, when the ruling was discovered and the steps taken thereafter. These matters were allegedly within counsel's personal knowledge arising from his conduct of the proceedings. The Applicant relies on authorities including Adieleke v Mediamax Network Limited [2026] KEHC 278 (KLR) and Maina v Macharia [2025] KEHC 13674 (KLR) for the proposition that counsel may depone to matters within personal knowledge arising from the conduct of a matter.
27. Even assuming that an isolated paragraph contained an inadmissible statement, the Applicant argues that the appropriate remedy would be to disregard or strike out the offending portion , rather than invalidate the entire application. It consequently submits that the Respondent has failed to demonstrate that the Supporting Affidavit is incurably defective.
28. The Applicant argues that the Respondent’s Replying Affidavit does not displace the essential facts supporting enlargement of time, particularly the alleged absence of notice of delivery of the ruling, the date on which the Applicant became aware of it, and the prompt filing of the application thereafter. The Applicant maintains that the Court’s inquiry at this stage is simply whether sufficient cause has been demonstrated for enlargement of time, not whether the intended Reference will ultimately succeed.
29. It reiterates that the delay was short and explained; there is an arguable question regarding the Taxing Officer's jurisdiction; the Respondent has demonstrated no prejudice incapable of compensation by costs; and refusing extension would permanently prevent the Applicant from challenging the taxation without appellate/reference scrutiny.
30. The Applicant consequently prays that the Court, dismiss the Preliminary Objection dated 10 July 2026 with costs, dismiss the objections raised against the Replying Affidavit and allow the Notice of Motion dated 7 July 2026 with costs to the Applicant.
Respondent’s submissions
31. The Advocate opposes the Client’s application dated 7 th July 2026. The Advocate states that the Bill of Costs was filed on 22 nd July 2025 and that the Client subsequently challenged the taxing officer’s jurisdiction through an application dated 5 th September 2025. That application was heard on its merits and dismissed on 5 th June 2026. According to the Advocate, the Client’s present application is merely an attempt to further delay taxation of the Bill of Costs.
32. The Advocate identifies a single issue for determination.
I. Whether the Client has established sufficient cause to warrant the Court's discretionary enlargement of time under Rule 11(4) of the ARO .
33. It opposes the application on three principal grounds.
34. Failure to satisfactorily explain the delay. The Advocate submits that extension of time is an equitable and discretionary remedy which is not granted automatically. The Client must provide sufficient and credible reasons explaining its failure to comply with the prescribed timelines. It disputes the Client’s contention that it was unaware of the ruling until 3 RD July 2026. According to the Advocate, the Court Registry issued multiple notices concerning delivery of the ruling and ultimately uploaded the ruling on CTS on 5 th June 2026, whereupon the parties were notified that it had been posted. It therefore maintains that the Client had actual notice of the ruling.
35. The Advocate also disputes the Client’s assertion that the delay was only 18 days . It calculates that the application of 7 th July 2026 was filed 32 days after the ruling of 5 th June 2026, while the 14-day period prescribed by Rule 11(2) had expired on 19 th June 2026.
36. Further, on 2 nd July 2026, both parties appeared before the Deputy Registrar for directions on taxation. The Advocate emphasizes that the Client did not complain that it had been unaware of the ruling, did not indicate an intention to lodge a Reference, and instead sought timelines for filing submissions on taxation. The Advocate therefore argues that the Client acquiesced in the taxation proceedings and should be estopped from subsequently seeking to halt them.
37. The Advocate additionally argues that because it was the Client’s own jurisdictional application that was awaiting ruling, the Client and its counsel had a duty to follow up its outcome. It says there is no evidence that the Client made any effort to follow up after 30 th April 2026, when the ruling was initially scheduled, despite subsequent notices. The application filed five days after taxation directions were given is consequently characterized by the Advocate as an afterthought.
38. The Advocate relies particularly on Gatiti v Teachers Service Commission [2024] KECA 379 (KLR) for the proposition that discretion to enlarge time is exercised according to settled principles and that a litigant has an obligation to keep abreast of the progress of their case. It also relies on Ombuna Ongeri & Co. Advocates v Corporate Insurance Co. Ltd [2026] KEHC 12619 (KLR), where the Court emphasized that an applicant bears the burden of satisfactorily explaining the delay and demonstrating diligence.
39. Intended Reference allegedly raises no arguable issue or prejudice. The Advocate submits that the Client has failed to demonstrate any viable or arguable issue-warranting enlargement of time or any prejudice that would arise if taxation proceeds. The central issue in the intended Reference concerns whether the parties had a fee agreement capable of ousting the taxing officer’s jurisdiction under section 45 of the Advocates Act. The Advocate argues that the Deputy Registrar correctly found that, although the documents evidenced an advocate-client arrangement involving monthly installments, they did not specify a precise or final legal fee for Constitutional Petition No. E495 of 2023. Consequently, there was no complete remuneration agreement capable of ousting the taxing officer's jurisdiction and jurisdiction under section 48 of the Advocates Act and the ARO remained intact.
40. According to the Advocate, the installments arrangement was open-ended, containing neither a final figure nor a defined duration. It therefore could not satisfy section 45(1). The Advocate argues that the intended Reference would consequently serve no practical purpose because the Client has not identified any specific amount allegedly agreed upon as the full professional fee.
41. On prejudice, the Advocate submits that taxation merely determines the quantum of fees payable and gives the Client an opportunity to challenge individual items in the Bill of Costs. It relies on Deposit Protection Fund v Rosaline Njeri Macharia [2006] KEHC 1536 (KLR) for the proposition that taxation itself does not occasion substantial loss because its immediate effect is simply to ascertain the amount payable.
42. The Advocate argues that taxation should therefore proceed because the jurisdictional objection has already been determined and directions for taxation were issued on 2 nd July 2026. It contends that granting leave would merely delay recovery of fees which have remained outstanding for a considerable period.
43. Competence of the Supporting Affidavit. The Advocate's third argument is that the Client’s application is fatally incompetent because its Supporting Affidavit was sworn by its advocate, B. Ongeri Oyugi, rather than by the Client. It invokes Rule 8 of the Advocates (Practice) Rules, together with Order 19 Rules 2 and 3(1) of the Civil Procedure Rules.
44. The Advocate contends that the affidavit contains contentious factual allegations concerning the circumstances surrounding the failure to lodge the Reference within time. It further complains that the affidavit uses plural expressions such as “ we”, “our” and “us”, allegedly contrary to the requirement that an affidavit be expressed in the first person. It argues that the affidavit fails to identify the sources of allegedly hearsay information or the other persons for whom the deponent purportedly speaks. On that basis, it asks the Court to strike out the affidavit under Order 19 Rule 6.
45. The Advocate relies on Mbugua & 3 Others v Turi Gardens Limited [2025] KEELC 34 (KLR) for the principle that an advocate should not swear an affidavit on contentious evidentiary matters because doing so may expose counsel to cross-examination and require counsel to step down from acting in the matter.
46. Accordingly, the Advocate asks the Court to dismiss the Client’s application dated 7 th July 2026 with costs and direct that taxation of the Advocate–Client Bill of Costs proceed on its merits, in accordance with the Deputy Registrar’s ruling of 5 th June 2026.
Analysis and determination
47. I have carefully considered the application, the affidavits on record, the parties’ submissions, and the authorities cited.
48. Two issues present themselves for determination:
(i) Whether the respondent’s preliminary objection has merit .
(ii) Whether the application dated 7 th July, 2026 has merit.
Whether the Respondent’s Preliminary Objection has merit
49. In the case of Garden Square Ltd v Kogo & Anor 2000 (KLR) 1695, Ringera J (as he then was) stated that what constitutes a true preliminary objection is a pure point of law which if successfully taken would have the effect of disposing of the suit or application.
50. This was in line with the decisions of the then Court of Appeal for East Africa in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 in which court stated as follows:
“A preliminary objection is in the nature of what used to be demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.”
51. The Supreme Court again considered the position of parties resorting to the use of Preliminary Objections and pronounced itself as follows in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR : -
“The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scares judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”
52. The Respondent has stated that the Applicants Advocate Ongeri Oyugi deposed on contentious and disputed facts in breached of Rule 8 of the Advocate Practice Rules as read with Order 19 Rules 2 and 3 (1) of the Civil Procedure Rules and for this reason, the application should be struck out.
53. A perusal of the Supporting affidavit by counsel for the Applicants shows in paragraphs 1-3, the Advocate was counsel on record hence conversant with the case, he deposes that he has the authority of the Applicant Company to swear the affidavit and that where he lacks personal knowledge, he would provide the source of information.
54. It is trite law that Advocates should only swear an affidavit onto issues he/she is fully conversant and/or had personal knowledge to otherwise Advocates should as much as possible avoid indulging into the arena of litigation otherwise their averments would be termed as hearsay and/or them being summoned to testify as witnesses which is extremely awkward if not embarrassing as far as conflict of interest is concerned.
55. The advocate proceeds in paragraph 4-5 to discuss the filings by both parties and the ruling of the court, which are matters of public knowledge of which can be accessed by every member of the public, he proceeds from paragraph 9-23 revealing sources of information after receiving instructions and hence being in conduct of the matter. This paragraphs, I find are sworn of proper instructions, disclosure and information to the counsel.
56. Under Rule 8 of the Advocates (practice) Rules, 1966 it is provided:-
"No advocate may appear as such before any Court or tribunal in any matter in which he has reason to believe that he may be required as witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear.”
57. Having gone through the said Affidavits, the Court notes that the averments contained in paragraph s 6-8 consist of pure hearsay as counsel has stated in the affidavit that he only received instructions after the Applicant learnt of the ruling on 3 rd July, 2026. He therefore was in no position to know of the developments described in the 3 paragraphs before receiving instructions in the matter.
58. In the case of Magnolia PVT Limited vs Synermed Pharmaceuticals (K) Ltd (2018) eKLR , the Court dealing with similar issue states as follows:-
" Whereas there is nothing barring an advocate from swearing an affidavit in appropriate cases, where the matters deposed to are agreed or on purely legal positions, advocates should refrain from the temptation of being the avenue through which disputed facts are proclaimed. The rationale for the said principle is to insulate the advocate, an officer of the Court, from the vagaries of litigation which, on occasions may be very unpleasant. By swearing an affidavit on such issues an advocate subjects himself to the process of cross-examination thus removing him from his role of legal counsel to that of a witness, a scenario which should be avoided like plague. In my view, however innocent an averment may be, counsel should desist from the temptation to be the pipe stem through which such an averment is transmitted."
59. However, the Applicant is deserving of the other prayers and it would be unfair to the Applicant Company to dismiss its application because of a technicality and mistake by an officer of this court who ought to have known better.
60. For these reasons, I do hereby direct that all the averments contained in paragraphs 6-8 of the supporting affidavit being not sufficiently direct evidence within the personal knowledge of the Advocate be and are hereby struck out from the said supporting affidavit.
61. I am guided by the decision in Tom Okello Obondo V. National Social Security Fund, HCCC No. 1759 of 1999 where the plaintiff had raised a preliminary objection arguing that certain affidavits were defective and should be expunged from the record; and Ringera, J (as he then was) ruled:
“The upshot of this matter is that I find the irregularity of form complained of is not fatal. The same can be excused by the Court in its discretion. And as I find no prejudice to the plaintiff occasioned by such error, I excuse the same and overrule the preliminary objection.”
62. As the Affidavits by the Applicant’s Advocate bordered on both contentious legal and factual issues within his knowledge, the Court has considered the same and further cautions the Advocate.
63. I further hold that the Notice of Preliminary Objection dated 10 th July, 2026 is without merit, I dismiss the same with no orders as to costs.
Leave to file Reference out of time
64. This Court is vested with discretionary power to enlarge the time for filing a reference under Rule 11(4) of the Advocates (Remuneration) Order . The Rule provides, in part, that:
“ The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or (2) for the taking of any step; such application for enlargement may be made notwithstanding that the time sought to be enlarged may have already expired.” The applicable threshold for the exercise of such discretion is the demonstration of “sufficient reason” or “sufficient cause.”
65. Our superior courts have articulated clear guiding principles governing the exercise of this discretion, which the Court must consider in determining whether to grant the relief sought.
66. The Supreme Court in Nicholas K. Salat v IEBC & 7 others stated that extension of time is not a right of a litigant, but an equitable remedy available only to a deserving party at the court’s discretion.
“The court must consider the circumstances of each case, bearing in mind factors such as:
(i) the length of delay;
(ii) the reason for the delay, whether the delay is explained and if the explanation is plausible;
(iii) whether there is an arguable case on the merits of the intended action (in other words, if the applicant has a prima facie meritorious claim or defence);
(iv) the degree of prejudice that the respondent would suffer if the extension is granted vis-à-vis the prejudice to the applicant if denied; and
(v) any other relevant considerations such as the conduct of the parties and the need to facilitate orderly administration of justice.
These factors are consistent with numerous Court of Appeal decisions which have emphasized that the discretion to extend time should be exercised judicially and not whimsically, with the overarching goal being to dispense substantive justice.
67. The Ruling herein was delivered on 5 th June, 2026. Pursuant to Rule 11 of the Advocates (Remuneration) Order , the Applicant, as the client, was required to issue a written notice of objection to the taxing officer within fourteen (14) days, and thereafter, upon receipt of the taxing officer’s reasons, to file a reference in the High Court within a further fourteen (14) days. These timelines were not complied with.
68. Instead, the Applicant filed this application 35 days after delivery of the ruling seeking enlargement of time was. On its face, the delay is considerable. It would therefore be inaccurate to assert that the Applicant was entirely indolent or indifferent to its rights. Upon finding out that ruling was delivered, the Applicant acted with reasonable promptitude by filing the present application on 7 th July, 2026 merely 3 days later. There is no evidence of undue delay or lethargy after discovery of the ruling and subsequent taxation dates.
[...truncated]