1 .The Notice of motion dated 23.1.2026 was brought by the applicant who sought the following orders:
a) Leave of this court to appeal out of time
b) This court to give or order a stay of the execution of the taxation ruling delivered on 31.7.2025 by resident magistrate C Kithinji at Taveta law courts.
c) The Honourable court be pleased to order and direct the Taveta Court to bring or the file to be brought before this court .
d) Costs of this application be on cause.
2 .The Application is supported by the affidavit of Maghanga Mwangima though sworn on unstated date and based on the grounds of the motion dated 23.1.2026 .
3 .The Applicant averred in the supporting affidavit that he struggled to secure the assessment documents as they were not served upon him from time of assessment of costs. the applicant deposed that the skeleton file was reached behind the back to the earlier defendant of which creates a lot of issues. He stated that no letter was reached for excerption to form the same despite the firm of the advocacy representing the respondent. He contended that the file be brought to assist the court in unravelling the confusion in the taxation as per his written submissions on record. He stated that he called for the documents to be supplied to him to appeal on time but is dissatisfied with the ruling of the resident magistrate hence the application to extend time to appeal out of time.
4 .The Application is opposed vide the grounds of opposition pursuant to order 51 rule 14 of the civil procedure rules 2010 dated 31.3.2026 averring that there is no appeal filed or if filed it is incompetent. The Respondent deposed that the court has no jurisdiction to deal with the matter in the manner it has been presented by the Applicant. Further that a stay of execution can only be granted in a matter where an appeal has been filed, pending hearing and determination. Further that the Applicant has not demonstrated substantial loss to be suffered and/ or sufficient reasons for the delay of coming to court. Further that there is no judgement placed before court for execution to warrant issuance of the orders sought by the Applicant .
5 .The Application was disposed by way of written submissions pursuant to directions of the court dated 6.5.2026.
Applicant’s submissions;
6 .The Applicant vide his written submissions dated 18.5.2026 submitted that the confusion created during the process of hearing and taxation of the matter by different Hon judicial officers amounted to a miscarriage of justice to Him. He submitted further that there is no order for reinstatement of the initial matter on record save for appeal filed at High Court Mombasa being appeal number 87 of 2008 between Nelson Shamunge versus Nelson Shamunge Ngennishoi who are not parties to the matter in question thereby rendering the taxation process illegal. The Applicant further submitted that the bill was assessed exparte without participation of Daudi ligho. He contended that Daudi ligho did not file the appeal vide annexed court order dated 3.11.2008.
The Respondent’s submissions;
7 .The Respondent submitted that the applicant ought to have filed a reference before the court instead of filing the application for leave to appeal out of time hence the application is misconceived and should be dismissed citing rule 11 (1)of The Advocates (Remuneration) Order that provides as follows; “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"
Order 11(4) of Advocates remuneration order provides as follows "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 lapsed.
Analysis and determination:
8 .Upon considering the affidavit evidence , written submissions of the parties and cited case law the following are issues for determination:
a) Whether the application is properly filed before the court.
b) Whether sufficient cause for delay in filing the Application has been shown by the Applicant.
c) Who to bear costs of the Application.
9 .The gist of contention by Applicant is the assessment of bill of costs by the Learned Trial Magistrate in Taveta Magistrates Court Civil Suit Number 10 of 2007 which is subject to schedule 7 of Advocates Remuneration Order, 2014. The Applicant through the preliminary objection dated 7.11.2023 objected to assessment of the bill of costs on grounds that the suit had earlier own been dismissed by Hon Gathaigwa hence Hon Ndegwa was not competent to relitigate over the matter unless the dismissal order of Hon Gathaigwa was set aside and suit reinstated for hearing and determination. He submitted further that the record placed before the trial magistrate/court for assessment of the party and party bill of costs was incomplete and skeleton file not having been certified. Further that Appeal numbers 87 of 2008 and 78 of 2012 related to different parties hence the bill ought to have been dismissed. The Applicant annexed a copy of the ruling from Taveta Magistrates Court in civil suit number 10 of 2007 between Nelson Shamunge and Maghanga Mwangima delivered on the 31.7.2025 in support of his application for leave to appeal out of time .
10 .The ruling pertaining assessment of party and party costs was delivered on 31.7.2025 upon being opposed and defended by The Applicant through a preliminary objection dated 7.11.2023. The Taxing Officer upon considering the preliminary objection dismissed it on grounds that the issues raised in the preliminary objection were not for consideration by the taxing master and reconstruction of missing file was within the law. The taxing master assessed the party and party bill of costs based on the pleadings and judgement on record as per paragraph 4 of the ruling dated 31.7.2025.A careful analyses of the applicant’s application revolves around filing of a reference before the Appellate bench once a party is dissatisfied with the findings of the taxing officer pursuant to order 11(1) and (4) of the Advocates Remuneration order ,2014 which provides for the mandatory procedures for compliance by the opposing party being :
I. Filing of notice of objection in the items of the bill objected within 14 days of the date of taxing ‘s masters ruling
ii. Call for reasons for the taxing officer for the decisions reached in the disputed items of the bill pf costs
iii. File a reference within 14 days before a judge in chambers from the date of receipt of the written reasons.
Iv. serve the reference upon the concerned parties.
11. The material placed before this court by Applicant does not support any attempts made by applicant to file a notice of objection to assessment of identified items in the party and party bill of costs , call for an explanation from the taxing officer of reasons for assessment of the party and party bill of costs at kshs 45,500/ as against the Defendant on the 31.7.2025 or file a refence before the Appellate Bench challenging the assessed party and party bill of costs assessed in Taveta mc10/2007.
12 .In the case of First Avenue Advocates Vs Arthur K Magugu & Another (2012)eklr it was restated that a party challenging the decision of a taxing master should approach the appellate bench by way of a reference for purposes of expediting access to justice to litigants in a cost friendly manner. In the circumstances the applicant is attempting to file a reference disguised in an application for extension of time to file an appeal out of time. Furthermore, it is trite that a reference filed out of time without an extension of time is a nullity as restated in the case of lubuleliah &Associates Advocates vs NK Brothers Limited(2014)kehc7393(klr). In the circumstances I find that the applicant failed to comply with order 11 of Advocates Remuneration Order, 2014
13 .Section 79 G of the Civil Procedure Act 2010 provides for 30 days within which a party aggrieved by a decision of A trial Court should file an appeal from the subordinate court to the high court from the date of decree or order appealed against .If the applicant intended to appeal the decisions of the trial court as to insuffiencey of the record of trial court the Applicant would have filed the appeal or application within 30 days from 31.7.2025 which he did not .
14 .The Applicant avers that he called for the proceedings to be supplied to him and certified copies for further action . I have perused the annexures on record in support of the application being the letter dated 30.3.2023 ,29.6.2023 and 7.12.2023 calling for certified copy of the judgment, proceedings ,handwritten copy of skeleton file in court and complaint of having not been filed by documents filed in court by the plaintiff’s Advocate and reasons for his non-attendance when matter was set for mention respectively. There is no material evidence annexed before court by applicant pertaining request for ruling on taxation of costs or reasons for taxation of the bill at kshs 45,500/= in accord with order 11 of the Advocates Remuneration order 2014.
15 .The Applicant was aware of and participated in the taxation process as per the ruling dated 31.7.2025 annexed on record. He was aware of the date set for ruling pursuant to the contents of his letter dated 7.12.2023 though the ruling dated 31.7.2025 is silent on presence of the parties at the time of its delivery. That notwithstanding section 1A and B of the Civil Procedure Act,2010 obligates a party to a suit to assist the court in expediting the disposal of their cases. It was upon the Applicant to follow up on the outcome of the ruling pertaining assessment of bill of costs and take the necessary steps on time. From 31.7.2025 to the time of filing the motion there is no correspondence placed before this court as proof that applicant called for the bill of costs to be supplied to him or be allowed to peruse the bill of costs. At close of filing of submissions on record , none was filed by the Applicant. Furthermore, even if the Applicant were to be considered on the basis that He is acting in person and excusable of not being conversant with the legal frame work for a reference and Appeal, the Applicant would have annexed a certificate of delay issued by the trial court or the head of station Taveta MC confirming delay in typing and issuance of the proceedings to support his assertion that the delay though inordinate is excusable. At close of the affidavit evidence on record none was filed by the Applicant.
16 .The supreme court in the celebrated case of Nicholas Kiptoo Arap Korir Salat vs Iebc &7 others(2014) kesc 12 ( klr) set forth the principles guiding courts for extension of time to file appeal out of time as follows
a) The extension of time is not a right of a party but an equitable remedy available to a deserving litigant/party at discretion of the court
b) The applicant bears the burden of laying a satisfactory basis for the request
c) That the courts exercise of discretion is on a case to case basis
d) There must be a reasonable explanation for the delay
e) The Application if granted shall not occasion any injustice to the respondent.
17. The Respondent submitted that no appeal has been filed on record to warrant grant of the reliefs sought by Applicant . A careful perusal of the date of the ruling dated 31.7.2025 reveals the circumstances that led to reconstruction of the skeleton file. In the ruling dated 31.7.2025 the trial Magistrate confirmed that the pleadings, proceedings and judgment are intact inclusive of the orders emanating from Appeal Number 87 of 2008 and 78 of 2012 filed at Mombasa and available in the court file. (Taveta MCC10/2007).
18 .Similarly Section 1Aand B of the Civil Procedure Act 2010 mandates the parties to a suit to assist the court in arriving at a just decision in a matter. It was upon the Applicant to obtain and annex to the application the impugned judgement, pleadings/proceeding, orders from the magistrates and appellate courts as constructed in the skeleton file to controvert the assertions of the Taxing master and support his application for extension of time to file appeal or reference out of time. The Taxing officer in the ruling dated 31.7.2025 stated that the bill of costs was assessed upon the plaintiff moving the court vide a letter8.11.2011 which the applicant herein participated. The Application was filed in court on the 5.2.2026 or thereabouts. from 31.7.2025 when the party and party bill of costs was assessed by the Taxing officer. Approximately 6 months had lapsed when the applicant moved the court. The Applicant was duty bound to account for the delay in filing the application out of time which he failed to do at close of the proceedings. Based on the reasoning above I find no reasonable cause established by the Applicant to warrant extension of time to lodge an appeal out of time or stay execution of the decree against the
Final orders:
Having considered the entire evidence on record, I find the motion dated 23.1.2026 not meritorious hence dismissed with costs to the Respondent.
Delivered , dated and signed in open court at Voi THIS 29.7.2026 in the presence of :
Applicant (in person)
Mr F Nyongesa for the Respondent
Mr letisiah Court Assistant
By J.A.ORWA
JUDGE
a) Leave of this court to appeal out of time
b) This court to give or order a stay of the execution of the taxation ruling delivered on 31.7.2025 by resident magistrate C Kithinji at Taveta law courts.
c) The Honourable court be pleased to order and direct the Taveta Court to bring or the file to be brought before this court .
d) Costs of this application be on cause.
2 .The Application is supported by the affidavit of Maghanga Mwangima though sworn on unstated date and based on the grounds of the motion dated 23.1.2026 .
3 .The Applicant averred in the supporting affidavit that he struggled to secure the assessment documents as they were not served upon him from time of assessment of costs. the applicant deposed that the skeleton file was reached behind the back to the earlier defendant of which creates a lot of issues. He stated that no letter was reached for excerption to form the same despite the firm of the advocacy representing the respondent. He contended that the file be brought to assist the court in unravelling the confusion in the taxation as per his written submissions on record. He stated that he called for the documents to be supplied to him to appeal on time but is dissatisfied with the ruling of the resident magistrate hence the application to extend time to appeal out of time.
4 .The Application is opposed vide the grounds of opposition pursuant to order 51 rule 14 of the civil procedure rules 2010 dated 31.3.2026 averring that there is no appeal filed or if filed it is incompetent. The Respondent deposed that the court has no jurisdiction to deal with the matter in the manner it has been presented by the Applicant. Further that a stay of execution can only be granted in a matter where an appeal has been filed, pending hearing and determination. Further that the Applicant has not demonstrated substantial loss to be suffered and/ or sufficient reasons for the delay of coming to court. Further that there is no judgement placed before court for execution to warrant issuance of the orders sought by the Applicant .
5 .The Application was disposed by way of written submissions pursuant to directions of the court dated 6.5.2026.
Applicant’s submissions;
6 .The Applicant vide his written submissions dated 18.5.2026 submitted that the confusion created during the process of hearing and taxation of the matter by different Hon judicial officers amounted to a miscarriage of justice to Him. He submitted further that there is no order for reinstatement of the initial matter on record save for appeal filed at High Court Mombasa being appeal number 87 of 2008 between Nelson Shamunge versus Nelson Shamunge Ngennishoi who are not parties to the matter in question thereby rendering the taxation process illegal. The Applicant further submitted that the bill was assessed exparte without participation of Daudi ligho. He contended that Daudi ligho did not file the appeal vide annexed court order dated 3.11.2008.
The Respondent’s submissions;
7 .The Respondent submitted that the applicant ought to have filed a reference before the court instead of filing the application for leave to appeal out of time hence the application is misconceived and should be dismissed citing rule 11 (1)of The Advocates (Remuneration) Order that provides as follows; “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"
Order 11(4) of Advocates remuneration order provides as follows "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 lapsed.
Analysis and determination:
8 .Upon considering the affidavit evidence , written submissions of the parties and cited case law the following are issues for determination:
a) Whether the application is properly filed before the court.
b) Whether sufficient cause for delay in filing the Application has been shown by the Applicant.
c) Who to bear costs of the Application.
9 .The gist of contention by Applicant is the assessment of bill of costs by the Learned Trial Magistrate in Taveta Magistrates Court Civil Suit Number 10 of 2007 which is subject to schedule 7 of Advocates Remuneration Order, 2014. The Applicant through the preliminary objection dated 7.11.2023 objected to assessment of the bill of costs on grounds that the suit had earlier own been dismissed by Hon Gathaigwa hence Hon Ndegwa was not competent to relitigate over the matter unless the dismissal order of Hon Gathaigwa was set aside and suit reinstated for hearing and determination. He submitted further that the record placed before the trial magistrate/court for assessment of the party and party bill of costs was incomplete and skeleton file not having been certified. Further that Appeal numbers 87 of 2008 and 78 of 2012 related to different parties hence the bill ought to have been dismissed. The Applicant annexed a copy of the ruling from Taveta Magistrates Court in civil suit number 10 of 2007 between Nelson Shamunge and Maghanga Mwangima delivered on the 31.7.2025 in support of his application for leave to appeal out of time .
10 .The ruling pertaining assessment of party and party costs was delivered on 31.7.2025 upon being opposed and defended by The Applicant through a preliminary objection dated 7.11.2023. The Taxing Officer upon considering the preliminary objection dismissed it on grounds that the issues raised in the preliminary objection were not for consideration by the taxing master and reconstruction of missing file was within the law. The taxing master assessed the party and party bill of costs based on the pleadings and judgement on record as per paragraph 4 of the ruling dated 31.7.2025.A careful analyses of the applicant’s application revolves around filing of a reference before the Appellate bench once a party is dissatisfied with the findings of the taxing officer pursuant to order 11(1) and (4) of the Advocates Remuneration order ,2014 which provides for the mandatory procedures for compliance by the opposing party being :
I. Filing of notice of objection in the items of the bill objected within 14 days of the date of taxing ‘s masters ruling
ii. Call for reasons for the taxing officer for the decisions reached in the disputed items of the bill pf costs
iii. File a reference within 14 days before a judge in chambers from the date of receipt of the written reasons.
Iv. serve the reference upon the concerned parties.
11. The material placed before this court by Applicant does not support any attempts made by applicant to file a notice of objection to assessment of identified items in the party and party bill of costs , call for an explanation from the taxing officer of reasons for assessment of the party and party bill of costs at kshs 45,500/ as against the Defendant on the 31.7.2025 or file a refence before the Appellate Bench challenging the assessed party and party bill of costs assessed in Taveta mc10/2007.
12 .In the case of First Avenue Advocates Vs Arthur K Magugu & Another (2012)eklr it was restated that a party challenging the decision of a taxing master should approach the appellate bench by way of a reference for purposes of expediting access to justice to litigants in a cost friendly manner. In the circumstances the applicant is attempting to file a reference disguised in an application for extension of time to file an appeal out of time. Furthermore, it is trite that a reference filed out of time without an extension of time is a nullity as restated in the case of lubuleliah &Associates Advocates vs NK Brothers Limited(2014)kehc7393(klr). In the circumstances I find that the applicant failed to comply with order 11 of Advocates Remuneration Order, 2014
13 .Section 79 G of the Civil Procedure Act 2010 provides for 30 days within which a party aggrieved by a decision of A trial Court should file an appeal from the subordinate court to the high court from the date of decree or order appealed against .If the applicant intended to appeal the decisions of the trial court as to insuffiencey of the record of trial court the Applicant would have filed the appeal or application within 30 days from 31.7.2025 which he did not .
14 .The Applicant avers that he called for the proceedings to be supplied to him and certified copies for further action . I have perused the annexures on record in support of the application being the letter dated 30.3.2023 ,29.6.2023 and 7.12.2023 calling for certified copy of the judgment, proceedings ,handwritten copy of skeleton file in court and complaint of having not been filed by documents filed in court by the plaintiff’s Advocate and reasons for his non-attendance when matter was set for mention respectively. There is no material evidence annexed before court by applicant pertaining request for ruling on taxation of costs or reasons for taxation of the bill at kshs 45,500/= in accord with order 11 of the Advocates Remuneration order 2014.
15 .The Applicant was aware of and participated in the taxation process as per the ruling dated 31.7.2025 annexed on record. He was aware of the date set for ruling pursuant to the contents of his letter dated 7.12.2023 though the ruling dated 31.7.2025 is silent on presence of the parties at the time of its delivery. That notwithstanding section 1A and B of the Civil Procedure Act,2010 obligates a party to a suit to assist the court in expediting the disposal of their cases. It was upon the Applicant to follow up on the outcome of the ruling pertaining assessment of bill of costs and take the necessary steps on time. From 31.7.2025 to the time of filing the motion there is no correspondence placed before this court as proof that applicant called for the bill of costs to be supplied to him or be allowed to peruse the bill of costs. At close of filing of submissions on record , none was filed by the Applicant. Furthermore, even if the Applicant were to be considered on the basis that He is acting in person and excusable of not being conversant with the legal frame work for a reference and Appeal, the Applicant would have annexed a certificate of delay issued by the trial court or the head of station Taveta MC confirming delay in typing and issuance of the proceedings to support his assertion that the delay though inordinate is excusable. At close of the affidavit evidence on record none was filed by the Applicant.
16 .The supreme court in the celebrated case of Nicholas Kiptoo Arap Korir Salat vs Iebc &7 others(2014) kesc 12 ( klr) set forth the principles guiding courts for extension of time to file appeal out of time as follows
a) The extension of time is not a right of a party but an equitable remedy available to a deserving litigant/party at discretion of the court
b) The applicant bears the burden of laying a satisfactory basis for the request
c) That the courts exercise of discretion is on a case to case basis
d) There must be a reasonable explanation for the delay
e) The Application if granted shall not occasion any injustice to the respondent.
17. The Respondent submitted that no appeal has been filed on record to warrant grant of the reliefs sought by Applicant . A careful perusal of the date of the ruling dated 31.7.2025 reveals the circumstances that led to reconstruction of the skeleton file. In the ruling dated 31.7.2025 the trial Magistrate confirmed that the pleadings, proceedings and judgment are intact inclusive of the orders emanating from Appeal Number 87 of 2008 and 78 of 2012 filed at Mombasa and available in the court file. (Taveta MCC10/2007).
18 .Similarly Section 1Aand B of the Civil Procedure Act 2010 mandates the parties to a suit to assist the court in arriving at a just decision in a matter. It was upon the Applicant to obtain and annex to the application the impugned judgement, pleadings/proceeding, orders from the magistrates and appellate courts as constructed in the skeleton file to controvert the assertions of the Taxing master and support his application for extension of time to file appeal or reference out of time. The Taxing officer in the ruling dated 31.7.2025 stated that the bill of costs was assessed upon the plaintiff moving the court vide a letter8.11.2011 which the applicant herein participated. The Application was filed in court on the 5.2.2026 or thereabouts. from 31.7.2025 when the party and party bill of costs was assessed by the Taxing officer. Approximately 6 months had lapsed when the applicant moved the court. The Applicant was duty bound to account for the delay in filing the application out of time which he failed to do at close of the proceedings. Based on the reasoning above I find no reasonable cause established by the Applicant to warrant extension of time to lodge an appeal out of time or stay execution of the decree against the
Final orders:
Having considered the entire evidence on record, I find the motion dated 23.1.2026 not meritorious hence dismissed with costs to the Respondent.
Delivered , dated and signed in open court at Voi THIS 29.7.2026 in the presence of :
Applicant (in person)
Mr F Nyongesa for the Respondent
Mr letisiah Court Assistant
By J.A.ORWA
JUDGE