1. The applicant, Ms. Isabella Wamuhu Muchoki approached this court through a chamber summons dated 24th March 2025 seeking six (6) prayers two (2) of which are already spent. The four prayers pending this court’s determination are as follows;
(i) That this Honourable court be pleased to extend time and grant leave to the applicant to lodge a reference and/or objections out of time against the Ruling of Honourable M. E. Analo, Deputy Registrar delivered on 12th February, 2025 in Murang’a Succession Cause No. 120 of 2014 (formerly Nyeri High Court Succession Cause No. 99 of 1991) in the matter of Julia Mirigo Kangeri (deceased).
(ii) That the decision of the Taxing Master delivered on the 12th February 2025 by Honourable M. E, Analo Deputy Registrar in relation to the taxation of the Advoate/Client bill of costs dated 14th March 2024 be set aside.
(iii) That the Honourable Court be pleased to exercise its inherent jurisdiction and reassess and retax the bill of costs in issue.
(iv) That the costs of this application be borne by the respondent.
2. The application is premised on the grounds stated on its face and the depositions made in the supporting affidavit sworn by the applicant. In summary, the applicant contends that the respondent filed an Advocate/client’s bill of costs against her seeking costs in the sum of Kshs. 682,008; that a ruling on the bill of costs was delivered on 12th February 2025; that she was aggrieved by the Taxing Master’s decision since in arriving at his decision, the Taxing Master erred in law by: taxing the bill at Ksh.114,300 despite evidence demonstrating existence of an agreement between the parties on legal fees in the sum of Kshs. 60,000 all inclusive; taxing the bill under Schedule 6 of the Advocates Remuneration Order instead of Schedule 10 which deals with succession matters; failing to consider her submissions, which in her view, raised pertinent issues of law.
3. In addition, the applicant asserted that she was desirous of filing a reference against the decision of the Taxing Master but the time for doing so had expired.
In explaining the reason for failure to file her intended reference on time, the applicant averred that the delay was caused by circumstances beyond her control as she fell ill and was unable to give her advocates instructions to file the reference on time.
4. The applicant contended that if the application was not allowed, she would suffer irreparable loss as the respondent would proceed to execute against the taxed costs which will be unfair as this would force her to pay additional money over and above the agreed legal fees which had already been settled; that if the application was allowed, the respondent will not be prejudiced.
5. The application is contested by the respondent vide a replying affidavit dated 15th May 2025 sworn by MS. Mukami Boore, an Advocate of the High Court of Kenya practising in the respondent’s firm of Advocates. Counsel deposed that the delay of one month in filing the instant application was inordinate and unexplained; that the applicants claim that she fell ill and the medical report annexed in support of her application were an afterthought given that the applicant had not tendered any evidence of illness prior to the date of the medical report.
6. Ms. Boore further averred that the intended reference did not have reasonable chances of success for reasons inter alia, the applicant did not claim in her replying affidavit in response to the bill of costs that the bill had been filed under the wrong schedule of the Advocates Renumeration Order and she did not also attach any written agreement on the alleged agreed legal fees. In her view, the application was misconceived and ought to be dismissed with costs for lack of merit.
7. The application was canvassed by way of written submissions. The applicant filed written submissions dated 18th December 2025 while those of the respondent are dated 23rd January 2026.
In her submissions, the applicant reiterated her averments in the supporting affidavit and asked the Court to invoke Sections 1A and 3 A of the Civil Procedure Act on the overriding objective of the Act and the inherent jurisdiction of the court to excuse her failure to file her intended reference within the stipulated timelines. In support of her submissions, she relied on the authority of Odera t/a AJ Odera & Associates vs Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR) i n which the Court of Appeal stated that the overriding objective conferred on the court considerable latitude in the exercise of its discretion in interpreting the law and rules thereunder.
8. The applicant further contended that it would be in the interest of justice and fairness to allow her application considering the glaring and fundamental errors of law committed by the Taxing Master during taxation.
9. On its part, the respondent in its submissions rehashed the averments made in the replying affidavit sworn on its behalf and referred to Rule 11 (1) of the Advocates Remuneration Order which requires a reference against the decision of the Taxing Master to be filed within 14 days of the impugned decision. It cited the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 others [2014] eKLR in which the Supreme Court set out the principles a court should take into account when considering applications seeking extension of time.
10. The respondent further questioned the credibility of the medical report availed by the applicant in support of her claim that she was unable to file her intended reference on time due to illness. According to the respondent, the intended reference did not have reasonable chances of success as the applicant was raising new issues that were not raised in her response to the bill of costs and she was thus estopped from raising those new issues. For this proposition, reliance was placed on the persuasive authority of Tanda Agent Limited vs CNK Advocates LLP [2024] KEHC 13950 (KLR ) and Kabogo vs Gitau [2025] KECA 193 (KLR).
11. Having considered the application and the parties rival written submissions, I find that prayer 4 and 5 of the application being prayers seeking re-taxation of the bill of costs are premature since they were sought before the applicant was granted leave to file her intended reference out of time. In my view, the only issue arising for my determination in this application is whether the applicant had demonstrated sufficient cause to justify extension of time to file her intended reference out of time.
12. The starting point is the law governing filing of references to the High Court against decisions of the taxing master which is set out in Paragraph 11 of the Advocates Remuneration Order as follows: -
“ (1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
(4) The High Court shall have power in its discretion to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.”
13. Paragraph 11 (4) above expressly grants the High Court power to enlarge the time fixed for filing an objection or a reference, even after the time prescribed in paragraph 11(1) had expired. The factors that courts ought to consider when exercising their discretion in granting or declining to grant extension of time for filing appeals and in this case references out of time are now well settled. In considering the said factors, the Court of Appeal in Hussein (Suing as the Administrator of the Estate of Amina Sora Gube) & 2 others v Hirbo [2025] KECA 1413 (KLR) cited with approval the case of Fakir Mohamed V Joseph Mugambi & 2 Others in Civil Application No. 33 of 2004 and stated thus :
“…The exercise of this court’s discretion under Rule 4 has followed a well beaten path since the stricture ‘sufficient reason’ was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if application is granted, the degree of prejudice to the respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance – are all relevant but not exhaustive factors: See: Mutiso vs. Mwangi Civil Application No. Nai. 255 of 1997 (ur), Mwangi vs. Kenya Airways Limited [2003] KLR 486, Major Joseph Mwereri Igweta vs. Mulika M’Ethare and Attorney General, Civil Application No.Nai 8/2000 (ur) and Murai vs. Wainana (No. 4) [1982] KLR 38.”
14. In the instant case, the taxing master’s ruling was delivered on 12th February 2025. The ruling contained reasons supporting the taxing master’s decision and therefore, the applicant had fourteen (14) days from the date of the ruling to file her reference. The record shows that the instant application was filed on 27th March 2025, about a month later.
15. The applicant has explained that after the impugned decision, she fell ill and her poor health prevented her from giving her advocates on record instructions to file a reference on time. In support of her claim, she annexed a medical report dated 24th March 2025 authored by Dr. James Kahura confirming that as per the date of the report, the applicant was on follow up treatment for various medical conditions including convulsive disorder, moderate asthma and hypertension as well as osteoarthritis.
16. I have considered the reason advanced by the applicant to explain the delay of about one month between the date the impugned ruling was delivered and date of filing of the instant application. I find that contrary to the respondent’s contention, a delay of about one month cannot in all fairness be said to be inordinate and inexcusable. In any event, the delay has been explained.
17. It is trite that ill health can raise a plausible explanation for delay where it affects a party’s ability to carry out the necessary steps to further their case or in this case, to file a reference. I fully associate myself with the holding of Mativo J (as he then was) in Sombesha v Attorney General & 2 others [2026] KECA 575 (KLR) when he expressed himself as follows ;-
“ 12. … Serious illness (whether of the litigant or their legal representative) is a well-recognized ground for the Court's "pardon" for a late filing. While there is no automatic rule that sickness excuses a delay, Courts treat it as a significant factor in determining if "good cause" exists.
13.To successfully rely on sickness, the applicant's affidavit must specify the nature of the condition and how it prevented action (e.g., being bedridden or hospitalized). Include medical certificates or hospital records to corroborate the claim. Cover the gap between the onset of illness and the eventual filing to show no additional negligence occurred once health was restored.”
18. Whereas I agree with the respondent that the medical report in this case was scanty on details regarding when the applicant fell sick and the effects of her aforesaid medical conditions, its brevity does not by itself rob it of its authenticity or credibility. The report supports the applicant’s explanation that she was unwell around the time she ought to have filed her intended reference.
19. In applications of this nature, the court is called upon to undertake a delicate balancing act between the competing rights and interest of both parties and the amount of prejudice, if any, the parties are likely to suffer if the application was decided one way or the other.
20. In weighing the degree of prejudice the parties were likely to suffer depending on the outcome of the application, I find that if the application was dismissed, the applicant’s right of access to justice guaranteed under Article 48 of the Constitution, her right to a fair hearing enshrined in Article 50 (1) of the Constitution and her right to have her grievances ventilated before a higher court are likely to be violated as denial of the application will throw her out of the seat of justice.
21. If on the other hand the application was allowed, the respondent was not likely to suffer much prejudice as the only prejudice it was likely to suffer was further delay before accessing its taxed costs. It is important to note that the applicants claim that the respondent has already been paid part of its costs has not been specifically denied. From the material presented before the court, there is no doubt that the prejudice the respondent may suffer if the application was allowed was one which can be ameliorated by an award of costs.
22. On whether the reference has chances of success, whereas it is not possible to say at this stage that the applicant’s intended reference has high chances of success, I think it is safe to say that from the affidavits filed by the parties and their annextures, the intended reference is arguable and cannot be said to be frivolous.
23. For all the above reasons, I find merit in the applicant’s prayer for extension of time to file her intended reference out of time. The application is thus allowed on terms that the applicant shall file and serve her intended reference within 14 days of todays date.
24. On costs, it is trite law that costs follow the event and are at the discretion of the court. Given that the instant application was necessitated by the applicant’s failure to file her intended reference on time, costs of this application are awarded to the respondent.
25. It is so ordered.
DATED,SIGNED and DELIVERED VIRTUALLY at NAIVASHA this 7th May 2026.
(i) That this Honourable court be pleased to extend time and grant leave to the applicant to lodge a reference and/or objections out of time against the Ruling of Honourable M. E. Analo, Deputy Registrar delivered on 12th February, 2025 in Murang’a Succession Cause No. 120 of 2014 (formerly Nyeri High Court Succession Cause No. 99 of 1991) in the matter of Julia Mirigo Kangeri (deceased).
(ii) That the decision of the Taxing Master delivered on the 12th February 2025 by Honourable M. E, Analo Deputy Registrar in relation to the taxation of the Advoate/Client bill of costs dated 14th March 2024 be set aside.
(iii) That the Honourable Court be pleased to exercise its inherent jurisdiction and reassess and retax the bill of costs in issue.
(iv) That the costs of this application be borne by the respondent.
2. The application is premised on the grounds stated on its face and the depositions made in the supporting affidavit sworn by the applicant. In summary, the applicant contends that the respondent filed an Advocate/client’s bill of costs against her seeking costs in the sum of Kshs. 682,008; that a ruling on the bill of costs was delivered on 12th February 2025; that she was aggrieved by the Taxing Master’s decision since in arriving at his decision, the Taxing Master erred in law by: taxing the bill at Ksh.114,300 despite evidence demonstrating existence of an agreement between the parties on legal fees in the sum of Kshs. 60,000 all inclusive; taxing the bill under Schedule 6 of the Advocates Remuneration Order instead of Schedule 10 which deals with succession matters; failing to consider her submissions, which in her view, raised pertinent issues of law.
3. In addition, the applicant asserted that she was desirous of filing a reference against the decision of the Taxing Master but the time for doing so had expired.
In explaining the reason for failure to file her intended reference on time, the applicant averred that the delay was caused by circumstances beyond her control as she fell ill and was unable to give her advocates instructions to file the reference on time.
4. The applicant contended that if the application was not allowed, she would suffer irreparable loss as the respondent would proceed to execute against the taxed costs which will be unfair as this would force her to pay additional money over and above the agreed legal fees which had already been settled; that if the application was allowed, the respondent will not be prejudiced.
5. The application is contested by the respondent vide a replying affidavit dated 15th May 2025 sworn by MS. Mukami Boore, an Advocate of the High Court of Kenya practising in the respondent’s firm of Advocates. Counsel deposed that the delay of one month in filing the instant application was inordinate and unexplained; that the applicants claim that she fell ill and the medical report annexed in support of her application were an afterthought given that the applicant had not tendered any evidence of illness prior to the date of the medical report.
6. Ms. Boore further averred that the intended reference did not have reasonable chances of success for reasons inter alia, the applicant did not claim in her replying affidavit in response to the bill of costs that the bill had been filed under the wrong schedule of the Advocates Renumeration Order and she did not also attach any written agreement on the alleged agreed legal fees. In her view, the application was misconceived and ought to be dismissed with costs for lack of merit.
7. The application was canvassed by way of written submissions. The applicant filed written submissions dated 18th December 2025 while those of the respondent are dated 23rd January 2026.
In her submissions, the applicant reiterated her averments in the supporting affidavit and asked the Court to invoke Sections 1A and 3 A of the Civil Procedure Act on the overriding objective of the Act and the inherent jurisdiction of the court to excuse her failure to file her intended reference within the stipulated timelines. In support of her submissions, she relied on the authority of Odera t/a AJ Odera & Associates vs Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR) i n which the Court of Appeal stated that the overriding objective conferred on the court considerable latitude in the exercise of its discretion in interpreting the law and rules thereunder.
8. The applicant further contended that it would be in the interest of justice and fairness to allow her application considering the glaring and fundamental errors of law committed by the Taxing Master during taxation.
9. On its part, the respondent in its submissions rehashed the averments made in the replying affidavit sworn on its behalf and referred to Rule 11 (1) of the Advocates Remuneration Order which requires a reference against the decision of the Taxing Master to be filed within 14 days of the impugned decision. It cited the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 others [2014] eKLR in which the Supreme Court set out the principles a court should take into account when considering applications seeking extension of time.
10. The respondent further questioned the credibility of the medical report availed by the applicant in support of her claim that she was unable to file her intended reference on time due to illness. According to the respondent, the intended reference did not have reasonable chances of success as the applicant was raising new issues that were not raised in her response to the bill of costs and she was thus estopped from raising those new issues. For this proposition, reliance was placed on the persuasive authority of Tanda Agent Limited vs CNK Advocates LLP [2024] KEHC 13950 (KLR ) and Kabogo vs Gitau [2025] KECA 193 (KLR).
11. Having considered the application and the parties rival written submissions, I find that prayer 4 and 5 of the application being prayers seeking re-taxation of the bill of costs are premature since they were sought before the applicant was granted leave to file her intended reference out of time. In my view, the only issue arising for my determination in this application is whether the applicant had demonstrated sufficient cause to justify extension of time to file her intended reference out of time.
12. The starting point is the law governing filing of references to the High Court against decisions of the taxing master which is set out in Paragraph 11 of the Advocates Remuneration Order as follows: -
“ (1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
(4) The High Court shall have power in its discretion to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.”
13. Paragraph 11 (4) above expressly grants the High Court power to enlarge the time fixed for filing an objection or a reference, even after the time prescribed in paragraph 11(1) had expired. The factors that courts ought to consider when exercising their discretion in granting or declining to grant extension of time for filing appeals and in this case references out of time are now well settled. In considering the said factors, the Court of Appeal in Hussein (Suing as the Administrator of the Estate of Amina Sora Gube) & 2 others v Hirbo [2025] KECA 1413 (KLR) cited with approval the case of Fakir Mohamed V Joseph Mugambi & 2 Others in Civil Application No. 33 of 2004 and stated thus :
“…The exercise of this court’s discretion under Rule 4 has followed a well beaten path since the stricture ‘sufficient reason’ was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if application is granted, the degree of prejudice to the respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance – are all relevant but not exhaustive factors: See: Mutiso vs. Mwangi Civil Application No. Nai. 255 of 1997 (ur), Mwangi vs. Kenya Airways Limited [2003] KLR 486, Major Joseph Mwereri Igweta vs. Mulika M’Ethare and Attorney General, Civil Application No.Nai 8/2000 (ur) and Murai vs. Wainana (No. 4) [1982] KLR 38.”
14. In the instant case, the taxing master’s ruling was delivered on 12th February 2025. The ruling contained reasons supporting the taxing master’s decision and therefore, the applicant had fourteen (14) days from the date of the ruling to file her reference. The record shows that the instant application was filed on 27th March 2025, about a month later.
15. The applicant has explained that after the impugned decision, she fell ill and her poor health prevented her from giving her advocates on record instructions to file a reference on time. In support of her claim, she annexed a medical report dated 24th March 2025 authored by Dr. James Kahura confirming that as per the date of the report, the applicant was on follow up treatment for various medical conditions including convulsive disorder, moderate asthma and hypertension as well as osteoarthritis.
16. I have considered the reason advanced by the applicant to explain the delay of about one month between the date the impugned ruling was delivered and date of filing of the instant application. I find that contrary to the respondent’s contention, a delay of about one month cannot in all fairness be said to be inordinate and inexcusable. In any event, the delay has been explained.
17. It is trite that ill health can raise a plausible explanation for delay where it affects a party’s ability to carry out the necessary steps to further their case or in this case, to file a reference. I fully associate myself with the holding of Mativo J (as he then was) in Sombesha v Attorney General & 2 others [2026] KECA 575 (KLR) when he expressed himself as follows ;-
“ 12. … Serious illness (whether of the litigant or their legal representative) is a well-recognized ground for the Court's "pardon" for a late filing. While there is no automatic rule that sickness excuses a delay, Courts treat it as a significant factor in determining if "good cause" exists.
13.To successfully rely on sickness, the applicant's affidavit must specify the nature of the condition and how it prevented action (e.g., being bedridden or hospitalized). Include medical certificates or hospital records to corroborate the claim. Cover the gap between the onset of illness and the eventual filing to show no additional negligence occurred once health was restored.”
18. Whereas I agree with the respondent that the medical report in this case was scanty on details regarding when the applicant fell sick and the effects of her aforesaid medical conditions, its brevity does not by itself rob it of its authenticity or credibility. The report supports the applicant’s explanation that she was unwell around the time she ought to have filed her intended reference.
19. In applications of this nature, the court is called upon to undertake a delicate balancing act between the competing rights and interest of both parties and the amount of prejudice, if any, the parties are likely to suffer if the application was decided one way or the other.
20. In weighing the degree of prejudice the parties were likely to suffer depending on the outcome of the application, I find that if the application was dismissed, the applicant’s right of access to justice guaranteed under Article 48 of the Constitution, her right to a fair hearing enshrined in Article 50 (1) of the Constitution and her right to have her grievances ventilated before a higher court are likely to be violated as denial of the application will throw her out of the seat of justice.
21. If on the other hand the application was allowed, the respondent was not likely to suffer much prejudice as the only prejudice it was likely to suffer was further delay before accessing its taxed costs. It is important to note that the applicants claim that the respondent has already been paid part of its costs has not been specifically denied. From the material presented before the court, there is no doubt that the prejudice the respondent may suffer if the application was allowed was one which can be ameliorated by an award of costs.
22. On whether the reference has chances of success, whereas it is not possible to say at this stage that the applicant’s intended reference has high chances of success, I think it is safe to say that from the affidavits filed by the parties and their annextures, the intended reference is arguable and cannot be said to be frivolous.
23. For all the above reasons, I find merit in the applicant’s prayer for extension of time to file her intended reference out of time. The application is thus allowed on terms that the applicant shall file and serve her intended reference within 14 days of todays date.
24. On costs, it is trite law that costs follow the event and are at the discretion of the court. Given that the instant application was necessitated by the applicant’s failure to file her intended reference on time, costs of this application are awarded to the respondent.
25. It is so ordered.
DATED,SIGNED and DELIVERED VIRTUALLY at NAIVASHA this 7th May 2026.