'1. The applicant filed the reference here vide the chamber summons dated 9th May 2025, through the firm of Kairu & McCourt Advocates Challenging the decisions of the Lower Court in Kisii CMCC no 111 of 2023 Samuel Bosire Oyaro Vs Jeremiah A Nehemiah, the Applicants herein sought the following orders THAT: -
1. Spent
2. Spent
3. The applicant be granted leave to file an objection and a taxation reference to this honourable court against the assessment of costs delivered on 23.04.2025 in Kisii Cmcc no 111 of 2023 Samuel Bosire Oyaro Vs Jeremiah A Nehemiah.
4. The objection to the learned magistrates'' ruling and the Application for reference annexed hereto be deemed as duly filed and served upon payment of the requisite fees.
5. The costs of this Application be borne by the Respondent
2. The grounds on the face of the application were that;
I. On 23rd April 2025, the court in Kisii Cmcc no 111 of 2023, Samuel Bosire Oyaro vs Jeremiah A Nehemiah, delivered its Ruling on the Plaintiff''s bill of costs dated 10.02.25.
II. The Applicant’s Advocate later came to court to peruse the court file in order to advise the client on the rationale of Ruling, however the court file could not be traced in the registry immediately and had to wait the said ruling on the CTS and upon perusal he discovered that the Applicant’s Response to the bill of costs dated 15.02.25 in the lower court were not put into consideration when assessing the said plaintiffs bill of costs dated 10.02.25.
III. The reason for the delay in filing the reference on the lower court assessed costs was because was unable to trace the Applicant as he was out of the country at the time for medical purposes and only manages to trace the applicant early May 2025 long after stipulated time granted to file reference had lapsed.
IV. The Applicant, being aggrieved and dissatisfied with the said Ruling on 23rd April 2025, intends to file a reference.
V. The Applicant is opposed to the said assessment of 23.04.25 on Costs and wishes to seek leave of court to file the Notice of objections and taxation Reference to the Plaintiffs Bill of costs out of time as it was grossly exaggerated and taxed without consideration of the Applicants response to the Respondents bill of costs thus condemning the Applicant unheard and if the Applicant is not certified urgent and heard on priority the whole Application and the intended Reference will be rendered nugatory as the Respondent shall proceed with execution against the Applicant as orders of stay of execution will lapse on 23rd May 2025.
VI. The stay of execution of the taxed costs will soon lapse, and the Respondent is exposed to imminent Execution as we have already been served with the certificate of costs and a letter threatening execution.
VII. There is a delay of less than 25 days in filling of the reference, which delay is not inordinate and in any case the delay has been genuinely explained.
VIII. If the Orders for Stay of execution are not granted, the Applicant is apprehensive that the Respondent will proceed and attach his properties on costs that were irregularly taxed, hence condemning the Applicant unheard.
3. The Application was opposed by a Replying Affidavit sworn by the Respondent on 26th May 2025. He deponed that the Ruling on the bills of costs was delivered in the presence of both parties and such party can claim ignorance, and that the applicant was present in court when the said ruling was delivered and that the claim that the court file was missing remains unsupported by any letter seeking for the court registry to avail the file.
4. The Respondent avers that the applicant was aware of the taxation outcome and took no reasonable steps to challenge the same until filling this application. The Respondent contends that a party aggrieved by the decision of a taxing officer must object in writing within 14 days of the decision and that the applicant is deemed to have waived his right of objection and that this court has no jurisdiction to entertain an application intended to revive a lapsed right.
5. The Respondent also avers that there is no sufficient cause that has been demonstrated to this court for the delay and the said claims of absence or medical travel are unsupported by any documentary proof such as travel records and medical reports and thus he termed the said application as an afterthought and is intended to delay execution and frustrate the realization of the said costs.
ANALYSIS AND DETERMINATION
6. I have considered the application, the supporting affidavit and the replying affidavit of the Respondent and have found that the issues of determination are whether:
a. Whether the Applicant should be granted leave to file the reference out of time.
b. Whether the court should stay the execution of the certificate of costs.
Whether the Applicant should be granted leave to file the reference out of time.
7. According to the Respondent the Ruling was delivered in the presence of the parties and thus the applicant had knowledge of that fact and that having been dissatisfied by the court said decision he had 14 days to file a reference in opposing the tax costs. Rule 11 of the Advocates Remuneration Order provides for the procedure of the taxing officer''s decision, thus;
a. Should any party object to the decision of the taxing officer, he may, within 14 days after the decision, give notice in writing to the taxing officer of the items of taxation to which he objects.
b. The Taxing officer shall forthwith record and forward to the objector the reasons for his decision for those items, and the objector within 14 days from the receipt of the reasons applied to a judge by chamber summons which shall be served by all parties concerned, setting out the grounds of his objection.
8. Rule 11(4) of the advocates remuneration order is clear that this court has discretion to extend time for lodging an objection notwithstanding the expiry of 14 days prescribed for the objection of the decision of the taxing officer on costs.
9. In the case of Republic vs Kenyatta University and another vs Wellington Kihato Wamburu (2018) eKLR, the court ruled that;
“this court has a discretion to grant an extension of time for filing a reference provided there are; (a)Good and substantial reasons for the failure to file the reference within the prescribed period; and (b) there are grounds in the application which, prima facie, show good course why the applicant should be heard.”
10. In this case, the decision of the taxing of the officer was delivered on 23rd April, 2025. The filing of the reference was expected to be filed by 5th of May, 2025, but the same was not filed till on 9th May, 2025, when he filed this application to seek leave of this court to be granted leave to file the reference out of time. The applicant claimed that was out of the country at the time for medical purposes and thus he was not available to give his advocates instructions to file the reference within the required time. However, the applicant has not supplied to this court any medical evidence to show that he was indeed out of the country in the intervening period leading to the delay in filing this application. Therefore, it goes without saying that the reason for the delay has not been properly substantiated to warrant grant of extension of time to file the reference.
Whether the court should stay the execution of the certificate of costs
11. In the case of Miller & Company Advocates v China Roads & Bridge Corporation (Miscellaneous Application 168 of 2019) [2021] KEHC 408 (KLR) (Commercial and Tax) (16 December 2021) (Ruling), the court observed as follows;
The conditions to be met in an application for stay of execution pending hearing and determination of a reference to a judge from taxation of costs are similar to the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. This is to say that a court will, in granting the orders, be guided by presence of substantial loss and the provision of suitable security for due performance of the terms of the decree or order that may eventually be binding upon the applicant. The court will also consider if the application has been filed without unreasonable delay.
12. On whether the application was filed without unreasonable delay as I have already observed hereinabove delayed in filing this application and that the explanation he gave for the delay in filing the application was plausible bearing in mind he did not provide any medical documentation to support his allegation that he was out of the country at the time he was required to give instructions to his advocate to file the reference.
13. In any event no security for due performance of the decree was offered by the applicant as required under order 42 of the Civil procedure rules .
14. In the end, I find that the Applicant’s application is not merited and I proceed to dismiss the same with costs.
T.A ODERA
JUDGE
9.9.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THR PRFESENCE OF :
MISS OGATO HOLDING BRIEF FOR MISS OMONDI FOR THE APPLICANT
MISS GOGI FOR THE RESPONDENT
CC : ROSELINE
'
1. Spent
2. Spent
3. The applicant be granted leave to file an objection and a taxation reference to this honourable court against the assessment of costs delivered on 23.04.2025 in Kisii Cmcc no 111 of 2023 Samuel Bosire Oyaro Vs Jeremiah A Nehemiah.
4. The objection to the learned magistrates'' ruling and the Application for reference annexed hereto be deemed as duly filed and served upon payment of the requisite fees.
5. The costs of this Application be borne by the Respondent
2. The grounds on the face of the application were that;
I. On 23rd April 2025, the court in Kisii Cmcc no 111 of 2023, Samuel Bosire Oyaro vs Jeremiah A Nehemiah, delivered its Ruling on the Plaintiff''s bill of costs dated 10.02.25.
II. The Applicant’s Advocate later came to court to peruse the court file in order to advise the client on the rationale of Ruling, however the court file could not be traced in the registry immediately and had to wait the said ruling on the CTS and upon perusal he discovered that the Applicant’s Response to the bill of costs dated 15.02.25 in the lower court were not put into consideration when assessing the said plaintiffs bill of costs dated 10.02.25.
III. The reason for the delay in filing the reference on the lower court assessed costs was because was unable to trace the Applicant as he was out of the country at the time for medical purposes and only manages to trace the applicant early May 2025 long after stipulated time granted to file reference had lapsed.
IV. The Applicant, being aggrieved and dissatisfied with the said Ruling on 23rd April 2025, intends to file a reference.
V. The Applicant is opposed to the said assessment of 23.04.25 on Costs and wishes to seek leave of court to file the Notice of objections and taxation Reference to the Plaintiffs Bill of costs out of time as it was grossly exaggerated and taxed without consideration of the Applicants response to the Respondents bill of costs thus condemning the Applicant unheard and if the Applicant is not certified urgent and heard on priority the whole Application and the intended Reference will be rendered nugatory as the Respondent shall proceed with execution against the Applicant as orders of stay of execution will lapse on 23rd May 2025.
VI. The stay of execution of the taxed costs will soon lapse, and the Respondent is exposed to imminent Execution as we have already been served with the certificate of costs and a letter threatening execution.
VII. There is a delay of less than 25 days in filling of the reference, which delay is not inordinate and in any case the delay has been genuinely explained.
VIII. If the Orders for Stay of execution are not granted, the Applicant is apprehensive that the Respondent will proceed and attach his properties on costs that were irregularly taxed, hence condemning the Applicant unheard.
3. The Application was opposed by a Replying Affidavit sworn by the Respondent on 26th May 2025. He deponed that the Ruling on the bills of costs was delivered in the presence of both parties and such party can claim ignorance, and that the applicant was present in court when the said ruling was delivered and that the claim that the court file was missing remains unsupported by any letter seeking for the court registry to avail the file.
4. The Respondent avers that the applicant was aware of the taxation outcome and took no reasonable steps to challenge the same until filling this application. The Respondent contends that a party aggrieved by the decision of a taxing officer must object in writing within 14 days of the decision and that the applicant is deemed to have waived his right of objection and that this court has no jurisdiction to entertain an application intended to revive a lapsed right.
5. The Respondent also avers that there is no sufficient cause that has been demonstrated to this court for the delay and the said claims of absence or medical travel are unsupported by any documentary proof such as travel records and medical reports and thus he termed the said application as an afterthought and is intended to delay execution and frustrate the realization of the said costs.
ANALYSIS AND DETERMINATION
6. I have considered the application, the supporting affidavit and the replying affidavit of the Respondent and have found that the issues of determination are whether:
a. Whether the Applicant should be granted leave to file the reference out of time.
b. Whether the court should stay the execution of the certificate of costs.
Whether the Applicant should be granted leave to file the reference out of time.
7. According to the Respondent the Ruling was delivered in the presence of the parties and thus the applicant had knowledge of that fact and that having been dissatisfied by the court said decision he had 14 days to file a reference in opposing the tax costs. Rule 11 of the Advocates Remuneration Order provides for the procedure of the taxing officer''s decision, thus;
a. Should any party object to the decision of the taxing officer, he may, within 14 days after the decision, give notice in writing to the taxing officer of the items of taxation to which he objects.
b. The Taxing officer shall forthwith record and forward to the objector the reasons for his decision for those items, and the objector within 14 days from the receipt of the reasons applied to a judge by chamber summons which shall be served by all parties concerned, setting out the grounds of his objection.
8. Rule 11(4) of the advocates remuneration order is clear that this court has discretion to extend time for lodging an objection notwithstanding the expiry of 14 days prescribed for the objection of the decision of the taxing officer on costs.
9. In the case of Republic vs Kenyatta University and another vs Wellington Kihato Wamburu (2018) eKLR, the court ruled that;
“this court has a discretion to grant an extension of time for filing a reference provided there are; (a)Good and substantial reasons for the failure to file the reference within the prescribed period; and (b) there are grounds in the application which, prima facie, show good course why the applicant should be heard.”
10. In this case, the decision of the taxing of the officer was delivered on 23rd April, 2025. The filing of the reference was expected to be filed by 5th of May, 2025, but the same was not filed till on 9th May, 2025, when he filed this application to seek leave of this court to be granted leave to file the reference out of time. The applicant claimed that was out of the country at the time for medical purposes and thus he was not available to give his advocates instructions to file the reference within the required time. However, the applicant has not supplied to this court any medical evidence to show that he was indeed out of the country in the intervening period leading to the delay in filing this application. Therefore, it goes without saying that the reason for the delay has not been properly substantiated to warrant grant of extension of time to file the reference.
Whether the court should stay the execution of the certificate of costs
11. In the case of Miller & Company Advocates v China Roads & Bridge Corporation (Miscellaneous Application 168 of 2019) [2021] KEHC 408 (KLR) (Commercial and Tax) (16 December 2021) (Ruling), the court observed as follows;
The conditions to be met in an application for stay of execution pending hearing and determination of a reference to a judge from taxation of costs are similar to the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. This is to say that a court will, in granting the orders, be guided by presence of substantial loss and the provision of suitable security for due performance of the terms of the decree or order that may eventually be binding upon the applicant. The court will also consider if the application has been filed without unreasonable delay.
12. On whether the application was filed without unreasonable delay as I have already observed hereinabove delayed in filing this application and that the explanation he gave for the delay in filing the application was plausible bearing in mind he did not provide any medical documentation to support his allegation that he was out of the country at the time he was required to give instructions to his advocate to file the reference.
13. In any event no security for due performance of the decree was offered by the applicant as required under order 42 of the Civil procedure rules .
14. In the end, I find that the Applicant’s application is not merited and I proceed to dismiss the same with costs.
T.A ODERA
JUDGE
9.9.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THR PRFESENCE OF :
MISS OGATO HOLDING BRIEF FOR MISS OMONDI FOR THE APPLICANT
MISS GOGI FOR THE RESPONDENT
CC : ROSELINE
'