1.The application before this court is a chamber summons dated 29/1/2025.The applicant wishes to and seeks the following prayers THAT;
a) the court be pleased to enlarge time to allow the applicant to file an objection (if need be) and a taxation reference out of time
b) that the leave granted in prayer (1) above do operate as stay of execution of the ruling of the taxing officer delivered on 2nd December 2024 aforesaid and any other consequential proceedings
c) that the objection to the taxing officer and the application for reference annexed hereto be deemed as duly filed and served upon payment of requisite fees and or the court do issue time frames within which to file and serve the same.
d) the costs of this application be in the cause
2. The application is based on the following grounds : :
a) The ruling was delivered on the 2nd December 2024
b) That the said ruling was delivered without notice to the defendant application herein
c) No email of the ruling was ever sent and or delivered to the defendant
d) That the time limited by the rules for the filing of the objection and reference to the high court thereof has already expired
e) The defendant is dissatisfied with the ruling by the deputy registrar
f) That the failure to file the objection and reference within the required time is not due to any fault on the part of the applicant
g) That allowing the application will not be prejudicial to the respondent
h) That the applicant has an arguable reference with high chances of success
i) That it is only fair or just that the application is allowed
j) The delay herein has not been inordinate and has been explained
k) The overriding objective and inherent jurisdiction of the court
l) That it is in the interest of justice that the time limited for the filing of objection and reference be extended.
3.The application is supported by the annexed affidavit of ROSE OBAGA ..
The grounds in the affidavit of support are as follows
a) That the ruling was on the plaintiff’s bill of costs herein dated 5/3/23
b) That the ruling sought to be appealed against was delivered by the deputy registrar on the 2/12/2024 without notice
c) That the said ruling was delivered without notice to the defendant the applicant herein
d) That the applicant learnt of the ruling and that it was to be delivered to the email to her advocate on record but to date has not received the said ruling
e) That the applicant not able to file her objection to the taxation and reference within 14 days respectively as specified under Paragraph 11(1) of the Advocates Remuneration Order 2014.
f) That 14 days have since expired
g) That the defendant is dissatisfied with the said taxation by the Deputy Registrar and seeks extension of time to file an objection if need be and reference.
h) That there has not been inordinate delay herein being 19 days delay for filing an objection & 5 days delay for Reference by my calculation) and the delay has been explained.
i) That the Respondent would not be prejudiced by the granting of the Application.
j) That that the failure to lodge a reference in time was neither intentional nor deliberate.
k) That now annexed is a copy of a draft Objection and Chamber Summons giving an outline and reasons of the Reference marked Exhibit ROI & RO2” respectively.
l) That from the draft reference it is clear that the applicant has an arguable Reference
m) That the Applicant’s Reference has high chances of succeeding if the Application is granted.
n) That in the premises it is only just and fair that she be allowed to file her Reference out of time.
o) That the Applicant urges this Honourable court do exercise its discretion in her favour.
APPLICANT’S SUBMISSIONS
4. The applicant submitted that She wishes to file an appeal /reference in regard to taxation of the respondent’s Bill of costs in the sum of Ksh. 239,574/= vide ruling delivered on 2/12/2024 .. Advocates Remuneration Order 2014. Applicant cited the ground of not being served with the ruling notice as the reason for the delay and that the delay was not inordinate.
5. . The respondent in his notice of preliminary objection dated 17.2.25 raised the following grounds that;
a) The orders sought have been overtaken by events and the law is clear on the same .
b) The bill of costs taxed was heard interpartes and the applicant fully participated .
c) The bill of costs was taxed under the provisions of the advocates Remuneration Act Schedule 2014 as required
d) That the extension of time sought shall be a stay which shall infringe to the Plaintiff’s rights to execute after judgment and taxation of bill of costs
e) That chamber summons is not premised on any point of law or fact but a mere delaying tactic obstructing execution which is due
f) That the decree is drawn according to the provisions of the judgment and the applicant did not appeal against the judgment to seek extension or stay of execution as intended
g) That the chamber summons be dismissed with costs to the plaintiff
6. The respondent also filed her relying affidavit dated 17.2.25 in which she deponed that the subject matter was filed in 2005 and the judgment delivered in the year 2007, the defendant/applicant was paid the decretal sum in full but to date he has refused to remit the same to the respondent awarded decretal sum. . She submitted that in th3 circumstances granting of the orders sought will prejudice her as she has been denied the fruits of her judgment.
Respondent’s submissions
7. The respondent also submitted that the granting of any orders sought by the applicant shall prejudice her as the case state in the year 2005 and she has not enjoyed the fruits of her Judgment. She accused respondent of deliberately delaying the case and refusal to satisfy the decree herein She asked the court to dismiss the chamber summons with costs. The respondent submitted that the issues for determination are
a)Whether there was unreasonable delay.at all
b) Whether granting of the orders sought shall cause further delay and prejudice the respondent.
c) Whether this application will affect the judgment ,execution or delay justice.
ANALYSIS AND DETERMINATION
8. I have carefully considered the application , the reply and the able submissions by both counsel.
In the case of Omar Shurie Vs Marian Rashe Yafar (Civil Application No. 107 of 2020) Asikhe Makhandia J, sitting at the Court of Appeal, cited with approval the locus classicas of Leo Sila Mutiso Vs Hellen Wangari Mwangi (1999) 2EA 231 which laid down the parameters of deciding an application for extension of time as follows: -
“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.”
8. Order 42 Rule 6(1) and (2) of the Civil Procedure Rules provides as follows:(1)No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless –(a)The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
10.The principles for granting stay pending filing of a reference are the same as those of stay pending appeal as the reference is actually an appeal against the decision of the taxing master . The courts have the discretion of whether to grant stay pending appeal not Under order 42 Rule 6 of the Civil procedure rules .
9. The issues for determination are as follows ;-
a. Whether the application has been filed without delay.
b. Whether the reasons for delay are plausible .
c. Whether the applicant has an arguable intended refernece .
d. Whether the respondent will be prejudiced by the extension of time .
e. Whether the applicant will suffer substantial loss unless the stay orders are granted.
f. Whether the intended reference will be rendered nugatory unless the orders sought are granted.
g. Whether the applicant has offered security .
h. Whether the applicant is entitled to the orders sought.
10. On whether the application was filed without delay, the ruling was delivered on 2.12.24 and the application was filed on 29.1.25. The law requires that a reference challenging the decision of a taxing master be filed in the High Court within 14 days from the date of the ruling of the taxing master It has emerged that the ruling was delivered on 2.12.24 and the application was filed on 29.1.25 instead of 16.12.24. The delay in filling the reference was thus for about 11 days only . This was not inordinate delay.
11. On the reason for the delay ,the applicant says he was not served with the ruling notice . I have perused the file but I have not come across notice for delivery of the ruling on 2.12.24 . This was a mistake o the part of the taxing master as a ruling notice ought to have been sent to the applicant to enable him attend or exercise his right of appeal if need be. The reason given for the delay is thus plausible.
12. On whether the intended appeal is arguable , it is trite law that the intended of appeal need not be merited but arguable at this stage . The draft objection raises the items which the applicant intends to object against arguable issues and so I find that the intended reference is arguable .
13. On whether the applicant will suffer substantial loss if the orders are not granted , he has a right of appeal as per the law and the respondent also has a right to enjoy the fruits of her judgment . The intended appeal is on costs only . The court has a duty to balance the two rights and arrive at a just determination of the issues herein. On 21.12.2022, Justice Ougo directed that :
a. The respondent (Applicant herein )applicant pays Ksh. 1,077,244 received by the applicant on behalf of the respondent less her fees as per the Advocates Remuneration order .
b. An order that the Applicant do pay the plaintiff /respondent Ksh, 750,941 plus interest .
c. An order that the respondent do pay to the applicant all monies in her custody held on behalf of the applicant failure to which interest shall run at court rates from the date of the judgment till payment in full .
14. The respondent lamented that this case has taken too long to revolve and the applicant is still indebted to her despite the above order and that she has always avoided the taxation. the decretal sum thus she seeks that the application be dismissed . The principal sum and interest are not subject of the intended reference . I order that the Judgement of Hon Lady Justice Ougo dated 21.12.22 be complied with within 21 days from today in the interest of justice .
15. On whether the respondent respondent will be prejudiced if the order for stay is granted , he main issue was with the issue of decretal sum which has been dealt with in paragraph 14 above , no prejudice will be occasioned to the respondent if the stay is granted .
16. On whether the appeal will be rendered nugatory if stay of execution of the
certificate of costs is not granted , the applicant says he intends to dispute the
same and the reference . In RWW v EKW [2019] eKLR IT was held as follows; The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.”l find that the reference will be rendered an academic exercise unless the stay is granted .
17. On the issue of security for satisfaction of the decree , the applicant has not offered any but I have already ordered that the decretal sum be paid as per the judgment dated 21.12.22 .
18. In the upshot the application dated 29/01/2025 is merited and the applicant is entitled to the orders sought, the same is allowed on the following terms:
a) Time is hereby enlarged to allow the applicant to file the objection and reference out of time.
b) The taxing master’s ruling contains reasons and so there is no need to order for the same
c) The reference be filed and served within 7 days from today.
d) Stay of execution of the ruling by the tax officer dated 2/12/2024 is hereby granted pending hearing and determination of the reference on condition that the applicant complies with the Judgment of Hon Lady Justice Ougo dated 21.12.22 within 21 days from today.
e) Each party to bear its own costs .
f) Mention on 24.9.25 for compliance and further orders .
a) the court be pleased to enlarge time to allow the applicant to file an objection (if need be) and a taxation reference out of time
b) that the leave granted in prayer (1) above do operate as stay of execution of the ruling of the taxing officer delivered on 2nd December 2024 aforesaid and any other consequential proceedings
c) that the objection to the taxing officer and the application for reference annexed hereto be deemed as duly filed and served upon payment of requisite fees and or the court do issue time frames within which to file and serve the same.
d) the costs of this application be in the cause
2. The application is based on the following grounds : :
a) The ruling was delivered on the 2nd December 2024
b) That the said ruling was delivered without notice to the defendant application herein
c) No email of the ruling was ever sent and or delivered to the defendant
d) That the time limited by the rules for the filing of the objection and reference to the high court thereof has already expired
e) The defendant is dissatisfied with the ruling by the deputy registrar
f) That the failure to file the objection and reference within the required time is not due to any fault on the part of the applicant
g) That allowing the application will not be prejudicial to the respondent
h) That the applicant has an arguable reference with high chances of success
i) That it is only fair or just that the application is allowed
j) The delay herein has not been inordinate and has been explained
k) The overriding objective and inherent jurisdiction of the court
l) That it is in the interest of justice that the time limited for the filing of objection and reference be extended.
3.The application is supported by the annexed affidavit of ROSE OBAGA ..
The grounds in the affidavit of support are as follows
a) That the ruling was on the plaintiff’s bill of costs herein dated 5/3/23
b) That the ruling sought to be appealed against was delivered by the deputy registrar on the 2/12/2024 without notice
c) That the said ruling was delivered without notice to the defendant the applicant herein
d) That the applicant learnt of the ruling and that it was to be delivered to the email to her advocate on record but to date has not received the said ruling
e) That the applicant not able to file her objection to the taxation and reference within 14 days respectively as specified under Paragraph 11(1) of the Advocates Remuneration Order 2014.
f) That 14 days have since expired
g) That the defendant is dissatisfied with the said taxation by the Deputy Registrar and seeks extension of time to file an objection if need be and reference.
h) That there has not been inordinate delay herein being 19 days delay for filing an objection & 5 days delay for Reference by my calculation) and the delay has been explained.
i) That the Respondent would not be prejudiced by the granting of the Application.
j) That that the failure to lodge a reference in time was neither intentional nor deliberate.
k) That now annexed is a copy of a draft Objection and Chamber Summons giving an outline and reasons of the Reference marked Exhibit ROI & RO2” respectively.
l) That from the draft reference it is clear that the applicant has an arguable Reference
m) That the Applicant’s Reference has high chances of succeeding if the Application is granted.
n) That in the premises it is only just and fair that she be allowed to file her Reference out of time.
o) That the Applicant urges this Honourable court do exercise its discretion in her favour.
APPLICANT’S SUBMISSIONS
4. The applicant submitted that She wishes to file an appeal /reference in regard to taxation of the respondent’s Bill of costs in the sum of Ksh. 239,574/= vide ruling delivered on 2/12/2024 .. Advocates Remuneration Order 2014. Applicant cited the ground of not being served with the ruling notice as the reason for the delay and that the delay was not inordinate.
5. . The respondent in his notice of preliminary objection dated 17.2.25 raised the following grounds that;
a) The orders sought have been overtaken by events and the law is clear on the same .
b) The bill of costs taxed was heard interpartes and the applicant fully participated .
c) The bill of costs was taxed under the provisions of the advocates Remuneration Act Schedule 2014 as required
d) That the extension of time sought shall be a stay which shall infringe to the Plaintiff’s rights to execute after judgment and taxation of bill of costs
e) That chamber summons is not premised on any point of law or fact but a mere delaying tactic obstructing execution which is due
f) That the decree is drawn according to the provisions of the judgment and the applicant did not appeal against the judgment to seek extension or stay of execution as intended
g) That the chamber summons be dismissed with costs to the plaintiff
6. The respondent also filed her relying affidavit dated 17.2.25 in which she deponed that the subject matter was filed in 2005 and the judgment delivered in the year 2007, the defendant/applicant was paid the decretal sum in full but to date he has refused to remit the same to the respondent awarded decretal sum. . She submitted that in th3 circumstances granting of the orders sought will prejudice her as she has been denied the fruits of her judgment.
Respondent’s submissions
7. The respondent also submitted that the granting of any orders sought by the applicant shall prejudice her as the case state in the year 2005 and she has not enjoyed the fruits of her Judgment. She accused respondent of deliberately delaying the case and refusal to satisfy the decree herein She asked the court to dismiss the chamber summons with costs. The respondent submitted that the issues for determination are
a)Whether there was unreasonable delay.at all
b) Whether granting of the orders sought shall cause further delay and prejudice the respondent.
c) Whether this application will affect the judgment ,execution or delay justice.
ANALYSIS AND DETERMINATION
8. I have carefully considered the application , the reply and the able submissions by both counsel.
In the case of Omar Shurie Vs Marian Rashe Yafar (Civil Application No. 107 of 2020) Asikhe Makhandia J, sitting at the Court of Appeal, cited with approval the locus classicas of Leo Sila Mutiso Vs Hellen Wangari Mwangi (1999) 2EA 231 which laid down the parameters of deciding an application for extension of time as follows: -
“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.”
8. Order 42 Rule 6(1) and (2) of the Civil Procedure Rules provides as follows:(1)No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless –(a)The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
10.The principles for granting stay pending filing of a reference are the same as those of stay pending appeal as the reference is actually an appeal against the decision of the taxing master . The courts have the discretion of whether to grant stay pending appeal not Under order 42 Rule 6 of the Civil procedure rules .
9. The issues for determination are as follows ;-
a. Whether the application has been filed without delay.
b. Whether the reasons for delay are plausible .
c. Whether the applicant has an arguable intended refernece .
d. Whether the respondent will be prejudiced by the extension of time .
e. Whether the applicant will suffer substantial loss unless the stay orders are granted.
f. Whether the intended reference will be rendered nugatory unless the orders sought are granted.
g. Whether the applicant has offered security .
h. Whether the applicant is entitled to the orders sought.
10. On whether the application was filed without delay, the ruling was delivered on 2.12.24 and the application was filed on 29.1.25. The law requires that a reference challenging the decision of a taxing master be filed in the High Court within 14 days from the date of the ruling of the taxing master It has emerged that the ruling was delivered on 2.12.24 and the application was filed on 29.1.25 instead of 16.12.24. The delay in filling the reference was thus for about 11 days only . This was not inordinate delay.
11. On the reason for the delay ,the applicant says he was not served with the ruling notice . I have perused the file but I have not come across notice for delivery of the ruling on 2.12.24 . This was a mistake o the part of the taxing master as a ruling notice ought to have been sent to the applicant to enable him attend or exercise his right of appeal if need be. The reason given for the delay is thus plausible.
12. On whether the intended appeal is arguable , it is trite law that the intended of appeal need not be merited but arguable at this stage . The draft objection raises the items which the applicant intends to object against arguable issues and so I find that the intended reference is arguable .
13. On whether the applicant will suffer substantial loss if the orders are not granted , he has a right of appeal as per the law and the respondent also has a right to enjoy the fruits of her judgment . The intended appeal is on costs only . The court has a duty to balance the two rights and arrive at a just determination of the issues herein. On 21.12.2022, Justice Ougo directed that :
a. The respondent (Applicant herein )applicant pays Ksh. 1,077,244 received by the applicant on behalf of the respondent less her fees as per the Advocates Remuneration order .
b. An order that the Applicant do pay the plaintiff /respondent Ksh, 750,941 plus interest .
c. An order that the respondent do pay to the applicant all monies in her custody held on behalf of the applicant failure to which interest shall run at court rates from the date of the judgment till payment in full .
14. The respondent lamented that this case has taken too long to revolve and the applicant is still indebted to her despite the above order and that she has always avoided the taxation. the decretal sum thus she seeks that the application be dismissed . The principal sum and interest are not subject of the intended reference . I order that the Judgement of Hon Lady Justice Ougo dated 21.12.22 be complied with within 21 days from today in the interest of justice .
15. On whether the respondent respondent will be prejudiced if the order for stay is granted , he main issue was with the issue of decretal sum which has been dealt with in paragraph 14 above , no prejudice will be occasioned to the respondent if the stay is granted .
16. On whether the appeal will be rendered nugatory if stay of execution of the
certificate of costs is not granted , the applicant says he intends to dispute the
same and the reference . In RWW v EKW [2019] eKLR IT was held as follows; The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.”l find that the reference will be rendered an academic exercise unless the stay is granted .
17. On the issue of security for satisfaction of the decree , the applicant has not offered any but I have already ordered that the decretal sum be paid as per the judgment dated 21.12.22 .
18. In the upshot the application dated 29/01/2025 is merited and the applicant is entitled to the orders sought, the same is allowed on the following terms:
a) Time is hereby enlarged to allow the applicant to file the objection and reference out of time.
b) The taxing master’s ruling contains reasons and so there is no need to order for the same
c) The reference be filed and served within 7 days from today.
d) Stay of execution of the ruling by the tax officer dated 2/12/2024 is hereby granted pending hearing and determination of the reference on condition that the applicant complies with the Judgment of Hon Lady Justice Ougo dated 21.12.22 within 21 days from today.
e) Each party to bear its own costs .
f) Mention on 24.9.25 for compliance and further orders .