1. The Respondent submitted an urgent application dated January 31, 2025, which requested the following:
a) Spent.
b) The execution of the Decree issued on April 25, 2024, along with the Ruling delivered on April 26, 2023, and the Certificate of Costs dated May 10, 2023, shall be suspended and/or subject to a temporary stay pending the hearing and determination of this Application.
c) This court is pleased to grant an extension of time for the client/applicant to file a Notice of Objection to the taxation proceedings in this matter, along with a reference to this court against the Certificate of Costs and the Ruling of the taxing master dated May 10, 2023, and April 26, 2023, respectively.
d) The application is hereby accepted as a reference in the taxation proceedings, and the court is requested to vary, review, and/or set aside the Certificate of Costs dated May 10, 2023, and the Ruling issued on April 26, 2023, by the taxing master. Additionally, the court is asked to strike out and/or dismiss the advocate-client bill of costs dated January 11, 2023.
e) The costs of this application be awarded to the Applicant.
2. The application is based on the grounds outlined in the motion. It is supported by the affidavit sworn by Emelda Sarah Odina on January 31, 2025, along with a supplementary affidavit dated March 4, 2025. The Applicant/Respondent has responded with a reply affidavit sworn by Mr. Duncan Nyongesa on February 19, 2025.
3. The court directed that the application be argued through written submissions, with learned counsel, Mr. Sausi for the Applicants and Mr. Nyogesa for the Respondents, highlighting the key provisions of the law and judicial precedents to guide this court in making a just decision. The court is grateful to the counsels.
4. The issues springing from the materials and submissions placed before me for which I frame for determination are whether a) the application herein is incompetent. b) Whether there should be an enlargement of time. c) Who should bear the costs?
5. The brief background of this matter is that the Respondent/Applicant law firm ceased acting for the Respondent in June 2022 when the Respondent decided to have another law firm represent it in Malindi ELC Case No. 67 of 2016; Moorgate Investments Ltd v Romsard Limited and three others. It then filed a Bill of Costs to recover its fees for representing the Respondent over a four-year period. The bill went to taxation, and a Ruling on Taxation was issued on April 26, 2023. The firm later obtained a Certificate of Costs on May 10, 2023, for the amount of Kenya Shillings Nine Hundred Seventy Thousand One Hundred Seventy-Three and Ninety Cents (KShs. 970,173.90), only.
6. Subsequently, the Respondent moved the court to adopt this Certificate of Costs as the Judgment and Decree of this court so it could recover its costs. The Respondent engaged the firm of Rene & Hans LLP Advocates, which filed an Application on June 30, 2023, seeking permission to respond to the Applicant’s Bill of Costs out of time and to strike out the Bill of Costs and Certificate of Costs.
7. That application was dismissed with costs awarded to the Respondent on April 25, 2024. Dissatisfied with this ruling, the Respondent filed another application on November 5, 2024, through Mogaka Bwo’ngaki & Company Advocates, objecting to the attachment and sale of the Respondent’s goods. This application was also dismissed with costs to the Respondent on January 6, 2025. Once again dissatisfied with the court’s decision, the Respondent seeks to overturn the decree dated April 25, 2024, by submitting this current application to the court.
8. Mr. Nyongesa, for the Respondent, argues that, first and foremost, the firm of Ochoki and Ochoki Associates is not properly on record for the Applicant. Judgment has already been entered in this case, and a different law firm represented the Applicant. Ochoki and Ochoki Associates should have sought leave of court before coming on record for the Applicant and proceeding with the current application in accordance with Order 9, Rules 9 and 10 of the Civil Procedure Rules, which provide as follows:
“When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court—
(a) upon an application with notice to all the parties; or
(b) upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person, as the case may be.”
9. I agree with Mr. Nyongesa that no application has been submitted to allow Ochoki and Ochoki to join these proceedings after judgment, nor has there been any filed consent between the former and current advocates for the Applicant – hence the application as proffered stands incompetent.
10. Procedurally, an application under Rule 9 can be combined with other prayers, provided that the issue of changing the advocate or the party intending to act in person is resolved first. See Jambo and another v Jambo and 2 others [2023] KEELC 16661 (KLR).
11. Regarding the merits of the application, Mr. Nyongesa believes that this court has already resolved the issues raised by the Applicant and that they conflict with the doctrine of res judicata. Conversely, Mr. Sausi criticizes the former advocate for the Applicant for filing an incompetent application, which is legally invalid, leading to its dismissal by this court. He argues that the mistakes of counsel should not be penalized against the litigant; hence, the current application addresses this issue.
12. The doctrine of res judicata prevents the re-litigation of issues already decided by a competent court. This Court’s ruling dated April 25, 2024, dismissed the Applicant’s application dated June 30, 2023, which was disguised as a reference. The applicant had ample opportunity to treat it as a reference, and as correctly submitted by Mr. Sausi, an unknown path was taken by Mr. Bwo’ngaki, leading to its dismissal. In the same ruling, the court permitted the Respondent’s request to adopt the certificate of costs dated May 22, 2023, as the judgment and decree of this court.
13. Prayers 2, 3, and 4 of the application seek to stay, strike out, or vary the Respondent’s Certificate of Costs and the taxing master’s ruling. The main reason the Applicant relies on is the “mistake of counsel,” claiming that its former advocates, Mr. Mogaka Bwo’ngaki, did not understand their duties. Therefore, the court should grant an extension of time to have the matter brought as a proper reference through the established legal process. The Respondent argues that this claim is unfounded, particularly considering the significant delay in filing objections to the taxing master's ruling on the bill of costs.
14. I agree with Mr Nyongesa that it is well-established that ignorance of the law does not justify an extension of time. See Kamondo v Maina (Civil Application E110 of 2022) [2023] KECA 947 (KLR), Council, Jomo Kenyatta University of Agriculture and Technology v Joseph Mutuura Mbeera & 3 Others [2015] eKLR, which emphasized that lack of knowledge is not a valid reason for delay.
15. Notably, the process and steps for taxation proceedings involve serving the Bill of Costs by the Deputy Registrar, the designated taxing officer. After the Bill is filed and served, the Respondent in the Bill has the opportunity to oppose it. In this case, although the Applicant, who was the Respondent in the Bill, was served, they never opposed it. The taxing master then proceeded to rule on the matter, as acknowledged by the Applicant in its Supplementary Affidavit. The Respondent also filed an Affidavit of Service, confirming service on February 2, 2023.
16. The taxation scheduled for February 20, 2023, was missed because the court was not in session. Additional dates were served, but the Respondent in the Bill chose not to participate. The ruling was issued on April 26, 2023, leading to the Certificate of Costs dated May 10, 2023. No valid explanation exists for the two-year delay in objecting to the taxed bill of costs or filing a reference concerning the bill, as provided by law.
17. The Applicant had the opportunity, under Rule 11 of the Advocates (Remuneration) Order, to file an objection but failed to do so. The taxation notice was served promptly, but the Applicant did not participate in the taxation process.
18. The Applicant requests the court's discretion under Article 159 of the Constitution to grant the application, but the delay without valid cause is not explained. Rule 6 of Order 50 of the Civil Procedure Rules gives courts discretion to extend time for good reasons. The Applicant has provided no valid reason. Instead, it is proffered that the former advocate got the procedure all wrong.
19. As correctly submitted by Mr. Nyongesa, with whom I agree on this matter in YH Wholesalers Limited v Kenya Revenue Authority [2021] eKLR, time limits the right to seek judicial redress, and delays must be fully explained and reasonable. Extension of time is an equitable remedy, not a right, and must be based on valid, justifiable reasons. The Applicant's failure to act within the deadlines, starting from the service date of February 2, 2023, cannot be excused. See Zadok East Africa Limited v Associates [2022] KEELC 3452 (KLR).
20. Furthermore, the Respondent in the Bill failed to file any notice of objection to taxation, as required by paragraph 11 of the Advocates Remuneration Order, which mandates objections be made within 14 days of the decision, after which reasons are provided, and a reference is filed within 14 days of receiving the reasons. The record shows no such notices were filed. In the Zadok Case(supra), the court ruled:
“In view of the fact that there is no competent notice of objection to taxation, this court cannot deal with the issue of whether leave should be granted to the Applicant to file the reference out of time or not.
17. The above notwithstanding, the Applicant has not sufficiently explained why it did not file a written notice to the taxing officer within 14 days of the Ruling, considering that the Advocate was present in court when the Ruling was delivered.
18. Furthermore, the reason given by the advocate that the Applicant’s Director contracted covid-19 and was hospitalized has not been supported by any evidence. Indeed, it is unprocedural for the Applicant’s advocate to depose that the Applicant’s Director was sick. The issue of one being sick is within the personal knowledge of the person alleging that he was sick, and not his counsel.”
21. Based on the foregoing, it seems to me that the Applicant did not receive adequate legal representation in this matter, which led to unnecessary back-and-forth arguments and resulted in unwarranted applications here and before the taxing master. The Applicant had ample time and opportunity to present a proper reference before this court, but, as admitted, wandered off course with counsel, exploring unfamiliar territory on how to oppose taxation, ultimately leading to the bizarre proceedings we now have, for which this court has no easy solution. It is not one of those matters where the court's discretion should be exercised in favor of the Applicant.
22. Consequently, the application dated January 31, 2025, lacks merit and is hereby dismissed with costs.
Dated, signed, and delivered at Malindi virtually on this 10th day of July 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Mr. Sausi, for the Applicant
Mr. Nyongesa, for the Respondent
Happy: Court Assistant
a) Spent.
b) The execution of the Decree issued on April 25, 2024, along with the Ruling delivered on April 26, 2023, and the Certificate of Costs dated May 10, 2023, shall be suspended and/or subject to a temporary stay pending the hearing and determination of this Application.
c) This court is pleased to grant an extension of time for the client/applicant to file a Notice of Objection to the taxation proceedings in this matter, along with a reference to this court against the Certificate of Costs and the Ruling of the taxing master dated May 10, 2023, and April 26, 2023, respectively.
d) The application is hereby accepted as a reference in the taxation proceedings, and the court is requested to vary, review, and/or set aside the Certificate of Costs dated May 10, 2023, and the Ruling issued on April 26, 2023, by the taxing master. Additionally, the court is asked to strike out and/or dismiss the advocate-client bill of costs dated January 11, 2023.
e) The costs of this application be awarded to the Applicant.
2. The application is based on the grounds outlined in the motion. It is supported by the affidavit sworn by Emelda Sarah Odina on January 31, 2025, along with a supplementary affidavit dated March 4, 2025. The Applicant/Respondent has responded with a reply affidavit sworn by Mr. Duncan Nyongesa on February 19, 2025.
3. The court directed that the application be argued through written submissions, with learned counsel, Mr. Sausi for the Applicants and Mr. Nyogesa for the Respondents, highlighting the key provisions of the law and judicial precedents to guide this court in making a just decision. The court is grateful to the counsels.
4. The issues springing from the materials and submissions placed before me for which I frame for determination are whether a) the application herein is incompetent. b) Whether there should be an enlargement of time. c) Who should bear the costs?
5. The brief background of this matter is that the Respondent/Applicant law firm ceased acting for the Respondent in June 2022 when the Respondent decided to have another law firm represent it in Malindi ELC Case No. 67 of 2016; Moorgate Investments Ltd v Romsard Limited and three others. It then filed a Bill of Costs to recover its fees for representing the Respondent over a four-year period. The bill went to taxation, and a Ruling on Taxation was issued on April 26, 2023. The firm later obtained a Certificate of Costs on May 10, 2023, for the amount of Kenya Shillings Nine Hundred Seventy Thousand One Hundred Seventy-Three and Ninety Cents (KShs. 970,173.90), only.
6. Subsequently, the Respondent moved the court to adopt this Certificate of Costs as the Judgment and Decree of this court so it could recover its costs. The Respondent engaged the firm of Rene & Hans LLP Advocates, which filed an Application on June 30, 2023, seeking permission to respond to the Applicant’s Bill of Costs out of time and to strike out the Bill of Costs and Certificate of Costs.
7. That application was dismissed with costs awarded to the Respondent on April 25, 2024. Dissatisfied with this ruling, the Respondent filed another application on November 5, 2024, through Mogaka Bwo’ngaki & Company Advocates, objecting to the attachment and sale of the Respondent’s goods. This application was also dismissed with costs to the Respondent on January 6, 2025. Once again dissatisfied with the court’s decision, the Respondent seeks to overturn the decree dated April 25, 2024, by submitting this current application to the court.
8. Mr. Nyongesa, for the Respondent, argues that, first and foremost, the firm of Ochoki and Ochoki Associates is not properly on record for the Applicant. Judgment has already been entered in this case, and a different law firm represented the Applicant. Ochoki and Ochoki Associates should have sought leave of court before coming on record for the Applicant and proceeding with the current application in accordance with Order 9, Rules 9 and 10 of the Civil Procedure Rules, which provide as follows:
“When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court—
(a) upon an application with notice to all the parties; or
(b) upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person, as the case may be.”
9. I agree with Mr. Nyongesa that no application has been submitted to allow Ochoki and Ochoki to join these proceedings after judgment, nor has there been any filed consent between the former and current advocates for the Applicant – hence the application as proffered stands incompetent.
10. Procedurally, an application under Rule 9 can be combined with other prayers, provided that the issue of changing the advocate or the party intending to act in person is resolved first. See Jambo and another v Jambo and 2 others [2023] KEELC 16661 (KLR).
11. Regarding the merits of the application, Mr. Nyongesa believes that this court has already resolved the issues raised by the Applicant and that they conflict with the doctrine of res judicata. Conversely, Mr. Sausi criticizes the former advocate for the Applicant for filing an incompetent application, which is legally invalid, leading to its dismissal by this court. He argues that the mistakes of counsel should not be penalized against the litigant; hence, the current application addresses this issue.
12. The doctrine of res judicata prevents the re-litigation of issues already decided by a competent court. This Court’s ruling dated April 25, 2024, dismissed the Applicant’s application dated June 30, 2023, which was disguised as a reference. The applicant had ample opportunity to treat it as a reference, and as correctly submitted by Mr. Sausi, an unknown path was taken by Mr. Bwo’ngaki, leading to its dismissal. In the same ruling, the court permitted the Respondent’s request to adopt the certificate of costs dated May 22, 2023, as the judgment and decree of this court.
13. Prayers 2, 3, and 4 of the application seek to stay, strike out, or vary the Respondent’s Certificate of Costs and the taxing master’s ruling. The main reason the Applicant relies on is the “mistake of counsel,” claiming that its former advocates, Mr. Mogaka Bwo’ngaki, did not understand their duties. Therefore, the court should grant an extension of time to have the matter brought as a proper reference through the established legal process. The Respondent argues that this claim is unfounded, particularly considering the significant delay in filing objections to the taxing master's ruling on the bill of costs.
14. I agree with Mr Nyongesa that it is well-established that ignorance of the law does not justify an extension of time. See Kamondo v Maina (Civil Application E110 of 2022) [2023] KECA 947 (KLR), Council, Jomo Kenyatta University of Agriculture and Technology v Joseph Mutuura Mbeera & 3 Others [2015] eKLR, which emphasized that lack of knowledge is not a valid reason for delay.
15. Notably, the process and steps for taxation proceedings involve serving the Bill of Costs by the Deputy Registrar, the designated taxing officer. After the Bill is filed and served, the Respondent in the Bill has the opportunity to oppose it. In this case, although the Applicant, who was the Respondent in the Bill, was served, they never opposed it. The taxing master then proceeded to rule on the matter, as acknowledged by the Applicant in its Supplementary Affidavit. The Respondent also filed an Affidavit of Service, confirming service on February 2, 2023.
16. The taxation scheduled for February 20, 2023, was missed because the court was not in session. Additional dates were served, but the Respondent in the Bill chose not to participate. The ruling was issued on April 26, 2023, leading to the Certificate of Costs dated May 10, 2023. No valid explanation exists for the two-year delay in objecting to the taxed bill of costs or filing a reference concerning the bill, as provided by law.
17. The Applicant had the opportunity, under Rule 11 of the Advocates (Remuneration) Order, to file an objection but failed to do so. The taxation notice was served promptly, but the Applicant did not participate in the taxation process.
18. The Applicant requests the court's discretion under Article 159 of the Constitution to grant the application, but the delay without valid cause is not explained. Rule 6 of Order 50 of the Civil Procedure Rules gives courts discretion to extend time for good reasons. The Applicant has provided no valid reason. Instead, it is proffered that the former advocate got the procedure all wrong.
19. As correctly submitted by Mr. Nyongesa, with whom I agree on this matter in YH Wholesalers Limited v Kenya Revenue Authority [2021] eKLR, time limits the right to seek judicial redress, and delays must be fully explained and reasonable. Extension of time is an equitable remedy, not a right, and must be based on valid, justifiable reasons. The Applicant's failure to act within the deadlines, starting from the service date of February 2, 2023, cannot be excused. See Zadok East Africa Limited v Associates [2022] KEELC 3452 (KLR).
20. Furthermore, the Respondent in the Bill failed to file any notice of objection to taxation, as required by paragraph 11 of the Advocates Remuneration Order, which mandates objections be made within 14 days of the decision, after which reasons are provided, and a reference is filed within 14 days of receiving the reasons. The record shows no such notices were filed. In the Zadok Case(supra), the court ruled:
“In view of the fact that there is no competent notice of objection to taxation, this court cannot deal with the issue of whether leave should be granted to the Applicant to file the reference out of time or not.
17. The above notwithstanding, the Applicant has not sufficiently explained why it did not file a written notice to the taxing officer within 14 days of the Ruling, considering that the Advocate was present in court when the Ruling was delivered.
18. Furthermore, the reason given by the advocate that the Applicant’s Director contracted covid-19 and was hospitalized has not been supported by any evidence. Indeed, it is unprocedural for the Applicant’s advocate to depose that the Applicant’s Director was sick. The issue of one being sick is within the personal knowledge of the person alleging that he was sick, and not his counsel.”
21. Based on the foregoing, it seems to me that the Applicant did not receive adequate legal representation in this matter, which led to unnecessary back-and-forth arguments and resulted in unwarranted applications here and before the taxing master. The Applicant had ample time and opportunity to present a proper reference before this court, but, as admitted, wandered off course with counsel, exploring unfamiliar territory on how to oppose taxation, ultimately leading to the bizarre proceedings we now have, for which this court has no easy solution. It is not one of those matters where the court's discretion should be exercised in favor of the Applicant.
22. Consequently, the application dated January 31, 2025, lacks merit and is hereby dismissed with costs.
Dated, signed, and delivered at Malindi virtually on this 10th day of July 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Mr. Sausi, for the Applicant
Mr. Nyongesa, for the Respondent
Happy: Court Assistant