1. Before Court is the Respondent/Applicant application dated 28th July, 2025, brought pursuant to Section 3A of the Civil Procedure Act, Order 51 Rule 1 & 4, Order 12 Rule 7 of the Civil Procedure Rules, Rules 3 of the High Court (Practice and Procedure) Rules and Section 10 of the Judicature Act, wherein the Respondent/Applicant seeks the following orders: -
i. Spent
ii. Spent
iii. THAT the Honorable Court be pleased to set aside, vary and review the ruling entered herein and all consequential orders against the applicant herein.
iv. THAT the Honourable court be pleased to order a stay of execution of the ruling on the bill of cost herein pending hearing and determination of this suit.
v. THAT the Honourable court be pleased to grant leave to the applicant to file her appearance and response to the bill of cost application.
vi. THAT the costs of this application be in the cause.
2. The Applicant’s application is supported by the grounds thereof and the supporting affidavit of Mary Wanjiru Gathecha, the Applicant, sworn on 28th July, 2025.
3. The Applicant argues that she stands to suffer substantial and irreparable loss if the ruling on taxation is enforced, as the Respondent is already taking steps toward execution, which may render her destitute.
4. The Applicant further avers that she was unaware of the taxation proceedings and was never properly informed of the Advocate–Client Bill of Costs. She explains that she had fallen ill and did not have access to her phone, through which service was allegedly effected via a mobile messaging platform, and that she only became aware of the proceedings much later, by which time the ruling had already been delivered against her despite her efforts to salvage the situation.
5. The Applicant therefore urges the Court, on humanitarian and equitable grounds, to allow the matter to be heard on its merits, arguing that her illness and delayed discovery of the proceedings justify the setting aside of the ruling in the interests of justice and fairness, so as to afford her an opportunity to defend herself fully.
6. The Applicant has equally filed before court a letter from the official receiver indicating that she had satisfied the criteria for admission under the Insolvency Act, stopping creditors from beginning or continuing any steps to recover or enforce a debt against her.
7. The Respondent opposed the application and, in their submissions, states that they filed their Advocate–Client Bill of Costs dated 4th June 2024 on 10th June 2024, and subsequently amended the same on 25th July 2024. The Respondent further avers that the Client/Applicant was duly served with the Bill of Costs through WhatsApp using her official and known mobile number.
8. It avers that despite service, the Client/Applicant neither entered an appearance nor filed any response to the Bill of Costs proceedings, and that consequently, the matter proceeded for determination, and a ruling on the Bill of Costs was delivered on 13th August 2024, wherein the Bill was taxed and assessed at Kshs. 367,101.75/=.
9. The Advocate/Respondent submits that the application before the Court essentially seeks to set aside, vary, and/or review the decision of the Taxing Officer. It is its contention that the jurisdiction of the Court in matters relating to Advocate–Client Bills of Costs is governed by Paragraph 11 of the Advocates (Remuneration) Order, which sets out the procedure for objecting to a taxation decision, and that under the said provision, a party dissatisfied with the decision of a Taxing Officer must first issue a notice of objection within fourteen days, obtain reasons for the taxation, and thereafter file a Reference before a Judge. argues further that the Court is also vested with the discretion to enlarge the time for taking any such step.
10. The Advocate/Respondent argues that the Client/Applicant has failed to file a competent Reference as required under Paragraph 11 of the Advocates (Remuneration) Order, and therefore has not properly invoked the jurisdiction of the Court. It placed reliance on the decision in Kenya Commercial Bank Ltd v John Benjamin Wanyama, where the Court held that without a proper Reference challenging the Taxing Officer’s decision, the Court lacks jurisdiction to entertain an application seeking to upset the taxation. The Court in that matter observed that parties must adhere strictly to the laid down procedure under Paragraph 11 of the Advocates (Remuneration) Order.
11. The Advocate/Respondent further relies on Kwengu & Company Advocates v Raja in support of the argument that failure to file a proper Reference is fatal to an application challenging taxation proceeding.
12. Accordingly, the Advocate/Respondent submits that this Court lacks jurisdiction to grant the orders sought in the Client/Applicant’s Notice of Motion dated 25th July 2025, and urges the Court to dismiss the Application with costs without delving into its merits.
Determination
13. The issues that arise for my determination are: -
i. Whether this Court has jurisdiction to entertain the Applicant’s application.
ii. Whether the Applicant has laid sufficient grounds for setting aside, varying or reviewing the taxation ruling and for a stay of execution.
14. It is not in dispute that the Advocate/Respondent filed an Advocate Client Bill of Costs dated 4th June 2024, which was later amended on 25th July 2024, and that the same was taxed on 13th August 2024 at Kshs. 367,101.75/=. It is equally not disputed that the present application seeks, inter alia, to set aside, vary and/or review the taxation ruling and consequential orders.
15. Paragraph 11 of the Advocates (Remuneration) Order provides the exclusive procedure for challenging a decision of a Taxing Officer by requiring a party dissatisfied with taxation to issue notice of objection within fourteen days, obtain reasons for taxation, and thereafter file a Reference before a Judge. The provision further grants the Court discretion to enlarge time for taking any of the prescribed steps.
16. The Court of Appeal in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) held that where the law provides a clear procedure for redress, that procedure ought to be strictly followed. Similarly, in Machira & Co. Advocates v Arthur K. Magugu [2015] KEHC 8226 (KLR), the Court emphasized that Paragraph 11 of the Advocates (Remuneration) Order provides a complete code for challenging taxation, and parties must comply with the laid down procedure.
17. The Respondent/Advocate has relied on Kenya Commercial Bank Ltd v John Benjamin Wanyama (2016) KEHC 7242 (KLR) and Kwengu & Company Advocates v Raja (2023) KEELC 16625 KLR for the proposition that failure to file a competent Reference deprives the Court of jurisdiction to interfere with taxation.
18. I agree with the foregoing proposition to the extent that a challenge to the merits of taxation can only be entertained through a proper Reference under Paragraph 11. The Court, however, notes that the Applicant’s motion is not solely directed at the merits of taxation. She contends that she was unaware of the proceedings due to illness, that service was effected through WhatsApp while she had no access to her phone, and that she only became aware of the taxation after delivery of the ruling.
19. The court further notes that the Applicant also seeks leave to file a response out of time and invokes the Court’s discretionary powers under Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.
20. The power of the Court to set aside ex parte proceedings is discretionary and intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake. In Patel v E.A. Cargo Handling Services Ltd (1974) EA 75, the Court held that the main concern of the Court is to do justice to the parties and that discretion to set aside should be exercised to avoid injustice or hardship arising from excusable error.
21. Further, in Shah v Mbogo [1967] EA 116, the Court stated that the discretion to set aside is intended to prevent injustice or hardship resulting from accident, inadvertence, or excusable mistake, but not to assist a litigant who deliberately seeks to obstruct or delay justice.
22. Paragraph 11(4) of the Advocates (Remuneration) Order expressly grants the Court discretion to enlarge time even after the prescribed period has expired. It then follows that, although the Applicant did not file a formal Reference, this Court is not entirely divested of jurisdiction where a party seeks an extension of time or leave to challenge taxation out of time.
23. The Applicant, who the court notes is now acting in person, has explained that she was unwell and lacked access to the mobile device through which the service was effected. On its part, the Respondent has demonstrated that service was effected upon the Applicant through her known mobile number, but the Applicant has, by her supporting affidavit, told the court that she suffered ill health and financial distress, and has placed before court correspondence from the Official Receiver under the Insolvency Act.
24. Guided by Article 50 of the Constitution on the right to a fair hearing and Article 159(2)(d), which obliges courts to administer justice without undue regard to procedural technicalities, I find and hold that although the Applicant did not file a formal Reference as contemplated under Paragraph 11, sufficient cause has been shown to warrant the exercise of the Court’s discretion in favour of allowing the Applicant an opportunity to ventilate her objection to taxation.
25. In my considered view, refusal to grant such an opportunity would effectively shut out the Applicant from challenging the taxation altogether.
26. Accordingly, the Court makes the following orders: -
a) The Applicant is granted leave to file and serve a Reference against the taxation ruling dated 13th August 2024 within fourteen (14) days from the date hereof.
b) There shall be a stay of execution of the taxed costs pending the hearing and determination of the intended Reference.
c) I make no orders on costs.
27. Orders accordingly.
SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 21ST DAY OF MAY, 2026.
Appearance:
N/A present for the Applicant/Respondent
Mr. Kibet for the Respondent/Applicant
Ms. Esther S -C/A
i. Spent
ii. Spent
iii. THAT the Honorable Court be pleased to set aside, vary and review the ruling entered herein and all consequential orders against the applicant herein.
iv. THAT the Honourable court be pleased to order a stay of execution of the ruling on the bill of cost herein pending hearing and determination of this suit.
v. THAT the Honourable court be pleased to grant leave to the applicant to file her appearance and response to the bill of cost application.
vi. THAT the costs of this application be in the cause.
2. The Applicant’s application is supported by the grounds thereof and the supporting affidavit of Mary Wanjiru Gathecha, the Applicant, sworn on 28th July, 2025.
3. The Applicant argues that she stands to suffer substantial and irreparable loss if the ruling on taxation is enforced, as the Respondent is already taking steps toward execution, which may render her destitute.
4. The Applicant further avers that she was unaware of the taxation proceedings and was never properly informed of the Advocate–Client Bill of Costs. She explains that she had fallen ill and did not have access to her phone, through which service was allegedly effected via a mobile messaging platform, and that she only became aware of the proceedings much later, by which time the ruling had already been delivered against her despite her efforts to salvage the situation.
5. The Applicant therefore urges the Court, on humanitarian and equitable grounds, to allow the matter to be heard on its merits, arguing that her illness and delayed discovery of the proceedings justify the setting aside of the ruling in the interests of justice and fairness, so as to afford her an opportunity to defend herself fully.
6. The Applicant has equally filed before court a letter from the official receiver indicating that she had satisfied the criteria for admission under the Insolvency Act, stopping creditors from beginning or continuing any steps to recover or enforce a debt against her.
7. The Respondent opposed the application and, in their submissions, states that they filed their Advocate–Client Bill of Costs dated 4th June 2024 on 10th June 2024, and subsequently amended the same on 25th July 2024. The Respondent further avers that the Client/Applicant was duly served with the Bill of Costs through WhatsApp using her official and known mobile number.
8. It avers that despite service, the Client/Applicant neither entered an appearance nor filed any response to the Bill of Costs proceedings, and that consequently, the matter proceeded for determination, and a ruling on the Bill of Costs was delivered on 13th August 2024, wherein the Bill was taxed and assessed at Kshs. 367,101.75/=.
9. The Advocate/Respondent submits that the application before the Court essentially seeks to set aside, vary, and/or review the decision of the Taxing Officer. It is its contention that the jurisdiction of the Court in matters relating to Advocate–Client Bills of Costs is governed by Paragraph 11 of the Advocates (Remuneration) Order, which sets out the procedure for objecting to a taxation decision, and that under the said provision, a party dissatisfied with the decision of a Taxing Officer must first issue a notice of objection within fourteen days, obtain reasons for the taxation, and thereafter file a Reference before a Judge. argues further that the Court is also vested with the discretion to enlarge the time for taking any such step.
10. The Advocate/Respondent argues that the Client/Applicant has failed to file a competent Reference as required under Paragraph 11 of the Advocates (Remuneration) Order, and therefore has not properly invoked the jurisdiction of the Court. It placed reliance on the decision in Kenya Commercial Bank Ltd v John Benjamin Wanyama, where the Court held that without a proper Reference challenging the Taxing Officer’s decision, the Court lacks jurisdiction to entertain an application seeking to upset the taxation. The Court in that matter observed that parties must adhere strictly to the laid down procedure under Paragraph 11 of the Advocates (Remuneration) Order.
11. The Advocate/Respondent further relies on Kwengu & Company Advocates v Raja in support of the argument that failure to file a proper Reference is fatal to an application challenging taxation proceeding.
12. Accordingly, the Advocate/Respondent submits that this Court lacks jurisdiction to grant the orders sought in the Client/Applicant’s Notice of Motion dated 25th July 2025, and urges the Court to dismiss the Application with costs without delving into its merits.
Determination
13. The issues that arise for my determination are: -
i. Whether this Court has jurisdiction to entertain the Applicant’s application.
ii. Whether the Applicant has laid sufficient grounds for setting aside, varying or reviewing the taxation ruling and for a stay of execution.
14. It is not in dispute that the Advocate/Respondent filed an Advocate Client Bill of Costs dated 4th June 2024, which was later amended on 25th July 2024, and that the same was taxed on 13th August 2024 at Kshs. 367,101.75/=. It is equally not disputed that the present application seeks, inter alia, to set aside, vary and/or review the taxation ruling and consequential orders.
15. Paragraph 11 of the Advocates (Remuneration) Order provides the exclusive procedure for challenging a decision of a Taxing Officer by requiring a party dissatisfied with taxation to issue notice of objection within fourteen days, obtain reasons for taxation, and thereafter file a Reference before a Judge. The provision further grants the Court discretion to enlarge time for taking any of the prescribed steps.
16. The Court of Appeal in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) held that where the law provides a clear procedure for redress, that procedure ought to be strictly followed. Similarly, in Machira & Co. Advocates v Arthur K. Magugu [2015] KEHC 8226 (KLR), the Court emphasized that Paragraph 11 of the Advocates (Remuneration) Order provides a complete code for challenging taxation, and parties must comply with the laid down procedure.
17. The Respondent/Advocate has relied on Kenya Commercial Bank Ltd v John Benjamin Wanyama (2016) KEHC 7242 (KLR) and Kwengu & Company Advocates v Raja (2023) KEELC 16625 KLR for the proposition that failure to file a competent Reference deprives the Court of jurisdiction to interfere with taxation.
18. I agree with the foregoing proposition to the extent that a challenge to the merits of taxation can only be entertained through a proper Reference under Paragraph 11. The Court, however, notes that the Applicant’s motion is not solely directed at the merits of taxation. She contends that she was unaware of the proceedings due to illness, that service was effected through WhatsApp while she had no access to her phone, and that she only became aware of the taxation after delivery of the ruling.
19. The court further notes that the Applicant also seeks leave to file a response out of time and invokes the Court’s discretionary powers under Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.
20. The power of the Court to set aside ex parte proceedings is discretionary and intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake. In Patel v E.A. Cargo Handling Services Ltd (1974) EA 75, the Court held that the main concern of the Court is to do justice to the parties and that discretion to set aside should be exercised to avoid injustice or hardship arising from excusable error.
21. Further, in Shah v Mbogo [1967] EA 116, the Court stated that the discretion to set aside is intended to prevent injustice or hardship resulting from accident, inadvertence, or excusable mistake, but not to assist a litigant who deliberately seeks to obstruct or delay justice.
22. Paragraph 11(4) of the Advocates (Remuneration) Order expressly grants the Court discretion to enlarge time even after the prescribed period has expired. It then follows that, although the Applicant did not file a formal Reference, this Court is not entirely divested of jurisdiction where a party seeks an extension of time or leave to challenge taxation out of time.
23. The Applicant, who the court notes is now acting in person, has explained that she was unwell and lacked access to the mobile device through which the service was effected. On its part, the Respondent has demonstrated that service was effected upon the Applicant through her known mobile number, but the Applicant has, by her supporting affidavit, told the court that she suffered ill health and financial distress, and has placed before court correspondence from the Official Receiver under the Insolvency Act.
24. Guided by Article 50 of the Constitution on the right to a fair hearing and Article 159(2)(d), which obliges courts to administer justice without undue regard to procedural technicalities, I find and hold that although the Applicant did not file a formal Reference as contemplated under Paragraph 11, sufficient cause has been shown to warrant the exercise of the Court’s discretion in favour of allowing the Applicant an opportunity to ventilate her objection to taxation.
25. In my considered view, refusal to grant such an opportunity would effectively shut out the Applicant from challenging the taxation altogether.
26. Accordingly, the Court makes the following orders: -
a) The Applicant is granted leave to file and serve a Reference against the taxation ruling dated 13th August 2024 within fourteen (14) days from the date hereof.
b) There shall be a stay of execution of the taxed costs pending the hearing and determination of the intended Reference.
c) I make no orders on costs.
27. Orders accordingly.
SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 21ST DAY OF MAY, 2026.
C. N. BAARI
JUDGE
Appearance:
N/A present for the Applicant/Respondent
Mr. Kibet for the Respondent/Applicant
Ms. Esther S -C/A