REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI
ELC NO. 452 OF 2014
LUKA WAGANA............................................1 st PLAINTIFF/RESPONDENT
GODFREY MAINA MWANGI .......................2 ND PLAINTIFF/DECEASED
JAMES WANGUO KANYI...............................3 RD PLAINTIFF/DECEASED
-VERSUS-
CHARLES ALEXENDER KIAI.....................1 st DEFENDANT/APPLICANT
JOHN CIIRA GATHOGO....................................................2 ND DEFENDANT
RULING
1. The 1st Defendant named in this suit filed an application under Notice of Motion dated 17th February 2021, seeking the following orders:
a) That the Taxing Master be pleased to extend the time within which the Objector/1 st Defendant may file this reference to taxation on the Ruling delivered on 22nd January 2021.
b) That the Reference to taxation on the above ruling filed herewith be deemed to have been filed within time.
c) That costs be in the cause.
2. The application is supported by the Applicant's affidavit, which was filed by the 1st Defendant in the suit.
3. He deposed that the taxing master delivered his ruling herein on 22nd January 2021, and that he was dissatisfied with the entire ruling and its reasoning. He therefore applied for and obtained a copy of the said ruling.
4. After seeking advice on the issue, he learned that he was required to file a Reference against the impugned taxation order within 14 days of that ruling.
5. However, by the time he had found out about the time limitation, the time had already lapsed.
6. The Applicant’s case is that the taxing master has unfettered discretion to extend the time.
7. He attached his Reference to taxation and deposed that it raises credible issues requiring the intervention of the taxing master. He also argues that no prejudice will be occasioned to the respondents if this application is allowed, as they will make their own presentations.
The Respondent’s Grounds of Objection
8. The Plaintiff who filed the original suit filed grounds of objection to the instant application dated 6th June 2026, opposing the application on the following grounds:
a) That this Application herein should be struck out as it:
i. Discloses no reasonable cause of action against the Plaintiffs herein or
ii. It is scandalous, frivolous or vexatious, or
iii. It is otherwise an abuse of the process of this Honourable Court.
b) That consequently the same should be dismissed with costs to the Plaintiffs, which application is supported by the following grounds:
i. That Rule 76 of the Advocates Remuneration Order does not apply to Proceedings on a Reference to a Taxation and cannot be invoked to give Your Honour jurisdiction in this matter to extend time for the Applicant to file his Objection out of time.
ii. That a Reference to a Taxation can only be prosecuted under Rule 11 of the Advocates Remuneration Order.
iii. That the Applicant instead filed a Notice of Appeal against the Taxing Officer's Ruling of the 22 nd day of June, 2021, and has since not complied with the rules concerning the filing of the Record of Appeal and the Prosecution of Appeal under the Civil Procedure Rules.
iv. That no good reason has been shown to justify the delay of over 1954 days from the date the Ruling on Taxation was delivered (22/01/2021) to the date fixed for the Hearing of the Application herein (09/06/2026).
v. THAT the Plaintiffs are bound to suffer irreparably if this Honourable Court were to grant the order prayed for, as the Applicant definitely slept on his Rights.
vi. That in the circumstances, the Application should be dismissed with costs.
Analysis and Determination
9. The Applicant herein seeks an extension of time within which to file his Reference to the Taxing Master's ruling of 22nd January 2021.
10. Paragraph 11(1) of the Advocates (Remuneration) Order, Legal Notice 64 of 1962, provides that:
“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.”
11. The Court has power to extend the 14 days within which to notify the taxing officer, as stipulated in paragraph 11(4), which provides that:
“The High Court shall have power in its discretion by order 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.”
12. However, the extension of time is a discretionary power of the Court, meaning the Court will examine the merits of the application on a case-by-case basis. The Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v IEBC and 7 Others, Sup Ct. Application 16 of 2014 , cited and relied upon by both parties, established the principles to be applied in exercising the discretionary power to extend time:
“Extension of time being a creature of equity, one can only enjoy it if [one] acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that [one] was not at fault so as to let time lapse. Extension of time is not a right of a litigant against a Court, but a discretionary power of the Courts which litigants have to lay a basis [for] where they seek [grant of it.……. This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in the exercise of such discretion:
1. extension of time is not a right of a party; it is an equitable remedy that is only available to a deserving party at the discretion of the court;
2. a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3. whether the Court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
4. where there is [good] reason for the delay, the delay should be explained to the satisfaction of the Court;
5. whether there will be any prejudice suffered by the respondents if the extension is granted;
6. whether the application has been brought without undue delay; and
7. whether in certain cases, like election petitions, the public interest should be a consideration for extending time.”
8. In addition to this, the Court of Appeal in the case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 , laid down the parameters for extension of time as follows:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”
13. In this case, the impugned ruling was delivered on 22 January 2021. I note that the Applicant’s application for an extension of time to file the Reference is dated 17 February 2021, which is not long after the ruling.
14. I do note, however, that the Applicant delayed for a very long time in prosecuting his application. The direction and orders of the Honourable Deputy Registrar on 8 June 2021 were that any further applications with respect to the matter ought to be addressed to the Honourable Judge. No appearance was made on 22 June 2021. The Court itself noticed an unprosecuted application on record on 12 May 2026 and gave directions. The Applicant failed to explain the inordinate delay in prosecuting his application.
15. The Applicant took inordinately long to prosecute his application. However, noting that the Applicant appears in person, the Court, in its discretion, grants the Applicant an extension of time to file the Reference within 30 days hereof; failure to do so will result in the extension lapsing automatically.
16. No order as to costs.
Dated, signed, and delivered virtually at Nyeri on this 12th day of August 2026.
E. K. MAKORI
JUDGE
In the Presence of:
Mr Aswani for the 1 st Respondent
Applicant (in person)
Denis - Court Assistant
In the Absence of:
2 nd Respondent
ELC NO 452 OF 2014 Page 2 of 2
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI
ELC NO. 452 OF 2014
LUKA WAGANA............................................1 st PLAINTIFF/RESPONDENT
GODFREY MAINA MWANGI .......................2 ND PLAINTIFF/DECEASED
JAMES WANGUO KANYI...............................3 RD PLAINTIFF/DECEASED
-VERSUS-
CHARLES ALEXENDER KIAI.....................1 st DEFENDANT/APPLICANT
JOHN CIIRA GATHOGO....................................................2 ND DEFENDANT
RULING
1. The 1st Defendant named in this suit filed an application under Notice of Motion dated 17th February 2021, seeking the following orders:
a) That the Taxing Master be pleased to extend the time within which the Objector/1 st Defendant may file this reference to taxation on the Ruling delivered on 22nd January 2021.
b) That the Reference to taxation on the above ruling filed herewith be deemed to have been filed within time.
c) That costs be in the cause.
2. The application is supported by the Applicant's affidavit, which was filed by the 1st Defendant in the suit.
3. He deposed that the taxing master delivered his ruling herein on 22nd January 2021, and that he was dissatisfied with the entire ruling and its reasoning. He therefore applied for and obtained a copy of the said ruling.
4. After seeking advice on the issue, he learned that he was required to file a Reference against the impugned taxation order within 14 days of that ruling.
5. However, by the time he had found out about the time limitation, the time had already lapsed.
6. The Applicant’s case is that the taxing master has unfettered discretion to extend the time.
7. He attached his Reference to taxation and deposed that it raises credible issues requiring the intervention of the taxing master. He also argues that no prejudice will be occasioned to the respondents if this application is allowed, as they will make their own presentations.
The Respondent’s Grounds of Objection
8. The Plaintiff who filed the original suit filed grounds of objection to the instant application dated 6th June 2026, opposing the application on the following grounds:
a) That this Application herein should be struck out as it:
i. Discloses no reasonable cause of action against the Plaintiffs herein or
ii. It is scandalous, frivolous or vexatious, or
iii. It is otherwise an abuse of the process of this Honourable Court.
b) That consequently the same should be dismissed with costs to the Plaintiffs, which application is supported by the following grounds:
i. That Rule 76 of the Advocates Remuneration Order does not apply to Proceedings on a Reference to a Taxation and cannot be invoked to give Your Honour jurisdiction in this matter to extend time for the Applicant to file his Objection out of time.
ii. That a Reference to a Taxation can only be prosecuted under Rule 11 of the Advocates Remuneration Order.
iii. That the Applicant instead filed a Notice of Appeal against the Taxing Officer's Ruling of the 22 nd day of June, 2021, and has since not complied with the rules concerning the filing of the Record of Appeal and the Prosecution of Appeal under the Civil Procedure Rules.
iv. That no good reason has been shown to justify the delay of over 1954 days from the date the Ruling on Taxation was delivered (22/01/2021) to the date fixed for the Hearing of the Application herein (09/06/2026).
v. THAT the Plaintiffs are bound to suffer irreparably if this Honourable Court were to grant the order prayed for, as the Applicant definitely slept on his Rights.
vi. That in the circumstances, the Application should be dismissed with costs.
Analysis and Determination
9. The Applicant herein seeks an extension of time within which to file his Reference to the Taxing Master's ruling of 22nd January 2021.
10. Paragraph 11(1) of the Advocates (Remuneration) Order, Legal Notice 64 of 1962, provides that:
“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.”
11. The Court has power to extend the 14 days within which to notify the taxing officer, as stipulated in paragraph 11(4), which provides that:
“The High Court shall have power in its discretion by order 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.”
12. However, the extension of time is a discretionary power of the Court, meaning the Court will examine the merits of the application on a case-by-case basis. The Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v IEBC and 7 Others, Sup Ct. Application 16 of 2014 , cited and relied upon by both parties, established the principles to be applied in exercising the discretionary power to extend time:
“Extension of time being a creature of equity, one can only enjoy it if [one] acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that [one] was not at fault so as to let time lapse. Extension of time is not a right of a litigant against a Court, but a discretionary power of the Courts which litigants have to lay a basis [for] where they seek [grant of it.……. This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in the exercise of such discretion:
1. extension of time is not a right of a party; it is an equitable remedy that is only available to a deserving party at the discretion of the court;
2. a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3. whether the Court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
4. where there is [good] reason for the delay, the delay should be explained to the satisfaction of the Court;
5. whether there will be any prejudice suffered by the respondents if the extension is granted;
6. whether the application has been brought without undue delay; and
7. whether in certain cases, like election petitions, the public interest should be a consideration for extending time.”
8. In addition to this, the Court of Appeal in the case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 , laid down the parameters for extension of time as follows:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”
13. In this case, the impugned ruling was delivered on 22 January 2021. I note that the Applicant’s application for an extension of time to file the Reference is dated 17 February 2021, which is not long after the ruling.
14. I do note, however, that the Applicant delayed for a very long time in prosecuting his application. The direction and orders of the Honourable Deputy Registrar on 8 June 2021 were that any further applications with respect to the matter ought to be addressed to the Honourable Judge. No appearance was made on 22 June 2021. The Court itself noticed an unprosecuted application on record on 12 May 2026 and gave directions. The Applicant failed to explain the inordinate delay in prosecuting his application.
15. The Applicant took inordinately long to prosecute his application. However, noting that the Applicant appears in person, the Court, in its discretion, grants the Applicant an extension of time to file the Reference within 30 days hereof; failure to do so will result in the extension lapsing automatically.
16. No order as to costs.
Dated, signed, and delivered virtually at Nyeri on this 12th day of August 2026.
E. K. MAKORI
JUDGE
In the Presence of:
Mr Aswani for the 1 st Respondent
Applicant (in person)
Denis - Court Assistant
In the Absence of:
2 nd Respondent
ELC NO 452 OF 2014 Page 2 of 2