1. Before this Court for determination is the Applicant's Notice of Motion dated 24 th March 2025. The Application seeks the following principal orders:
( a) THAT this Honourable Court grants leave to the Applicant to file a taxation reference out of time.
(b) THAT the taxation reference be deemed properly filed upon such leave being granted.
(c) THAT costs of this application be provided for at the conclusion of the taxation reference.
(d) THAT any other relief that this Honourable court deems just and equitable to be granted.
2. The Application is supported by the Affidavit sworn by AMOS ANDAMA , an Advocate of the High Court of Kenya representing the Applicant.
3. The motion is brought under Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (Cap. 21), and Articles 50 and 159 of the Constitution of Kenya, 2010.
4. The Respondent opposed the Application by filing a Replying Affidavit. He also filed written submissions.
5. The Respondent herein, Hezron Getuma Onsongo T/A Hegeons Auctioneers , rendered auctioneering services pursuant to a lawful court process. Thereafter, the Respondent's bill of costs was taxed and allowed in the sum of Kshs. 247,609.00.
6. The Applicant, being aggrieved by the said taxation, sought to challenge the same through Kericho Miscellaneous Application No. E061 of 2024.
7. On 13 th March 2025, this Honourable Court delivered a ruling in the said matter dismissing the Applicant's application. The dismissal was premised on the ground that the Applicant had moved the court by way of Notice of Motion instead of a Chamber Summons as required under the applicable rules of procedure.
8. The Applicant now seeks leave to file a taxation reference out of time, contending that the earlier dismissal was based on a procedural technicality and not on the substantive merits of the case.
9. The Respondent opposed the Application, arguing that the delay of approximately 24 months is inordinate and unexplained, that the supporting affidavit sworn by the Applicant's advocate is incompetent, that the Applicant has invoked the wrong legal framework, and that granting the Application would prejudice the Respondent who has waited for too long to recover his lawfully taxed costs.
10. The Applicant, through their written submissions dated 20 th August 2025, has advanced various arguments.
11. On Jurisdiction, the Applicant submits that this Court has jurisdiction to grant leave to file a taxation reference out of time under Paragraph 11(4) of the Advocates Remuneration Order (ARO), which expressly vests the Court with discretionary power to enlarge time for filing either the notice or the reference. Reliance is placed on Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd (2) [2006] 1 EA 5 and Muri Mwaniiki & Wamiti Advocates v African Banking Corporation Ltd [2015] eKLR .
12. On Fair Hearing, the Applicant contends that the taxation was conducted without according them a fair opportunity to be heard, thereby violating Articles 47 and 50 of the Constitution. They cite Masumbuko Yerry Kombe v Kibiwoort Koross & another [2014] eKLR for the proposition that the right to a fair hearing is inviolable.
13. On the Earlier Dismissal, the Applicant argues that the dismissal of Kericho Misc. Application No. E061 of 2024 was based on a technical defect in the mode of filing, not on the merits. He invoked Order 51 Rule 10(2) of the Civil Procedure Rules, which provides that no application shall be defeated on a technicality or for want of form that does not affect the substance of the application.
14. On Article 159(2)(d), the Applicant heavily relies on the constitutional edict that justice shall be administered without undue regard to procedural technicalities. He cited E. Muriu Kamau & Another v. National Bank of Kenya Ltd., CA No. 258 of 2009 and Sangram Singh v Election Tribunal Koteh 1955 AIR 425 to underscore the importance of substantive justice.
15. On Prejudice, the Applicant submits that any prejudice occasioned to the Respondent can be adequately compensated by an award of costs, including "throw-away costs." He cited Patel v E.A. Cargo Handling Services Ltd [1974] EA 75 and Shah v Mbogo & Another [1967] EA 116 .
16. The Applicant prays that the Application be allowed to enable the Court to determine the substantive issues in the taxation reference.
17. The Respondent, through their written submissions dated 16 th October 2025, has raised the following objections;
18. On the Supporting Affidavit, the Respondent submits that the Affidavit in support of the Application was sworn by AMOS ANDAMA, the Advocate on record for the Applicant. This, they argue, offends Rule 9 of the Advocates (Practice) Rules, which provides that:
"No Advocate may appear as counsel in any matter in which he has sworn or is to swear an Affidavit."
19. The Respondent contends that the Advocate has turned himself into a litigant and a witness, thereby compromising the principle of impartiality. He cited Musau & 2 Others v Kiamba (2025) KEELC 3225 and Macharia v Wanyoike & 3 Others (1981) KLR 4070 for the proposition that such affidavits are incompetent and ought to be struck out.
20. On Inordinate Delay, the Respondent submits that the Applicant has delayed for approximately 24 months in filing the taxation reference. He argue that no credible or sufficient explanation has been offered for this delay. He invoked the maxim "equity aids the vigilant, not the indolent" and cited Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR , where the Supreme Court held that extension of time is not a right but an equitable remedy available only to a deserving party.
21. On the Applicable Law, the Respondent argues that the Applicant has invoked the wrong legal framework. They submit that the taxation in question relates to Auctioneers' costs, which is governed by Rule 55 of the Auctioneers Act and the Auctioneers Rules, not the Advocates Remuneration Order. He contends that this Court was gracious enough in the previous ruling to guide the Applicant on the correct procedure, yet the Applicant persists in relying on the wrong provisions.
22. On Previous Adjudication, the Respondent submits that the earlier application (Kericho HC Misc. Appl No. E061 of 2024) was heard substantively. The Applicant only sought stay orders and did not challenge the taxation itself. Therefore, this application is an afterthought intended to further delay the conclusion of the matter.
23. On Constitutional Issues, the Respondent argues that constitutional allegations cannot be raised by way of an affidavit in a miscellaneous application. Such issues must be raised in a formal constitutional petition under the Mutunga Rules. They cite Mumo Matemo v Trusted Society of Human Rights Alliance [2013] eKLR.
24. On Prejudice, the Respondent submits that he has waited for over 24 months to recover his lawfully taxed costs. He argued that he has been subjected to numerous litigations by the Applicant, incurring further expenses, therefore granting the Application would perpetuate this injustice.
25. The Respondent prays that the Application be dismissed with costs.
27. The Respondent has raised an objection to the competency of the Supporting Affidavit sworn by AMOS ANDAMA , the Advocate on record for the Applicant.
28. Rule 9 of the Advocates (Practice) Rules is explicit;
"No Advocate may appear as counsel in any matter in which he has sworn or is to swear an Affidavit."
29. The rationale behind this rule is sound, an advocate cannot be both counsel and witness in the same matter. The roles are distinct and must remain separate to preserve the integrity of the legal profession and the impartiality of the judicial process. An advocate who swears an affidavit becomes a witness, and it would be improper for them to then address the court as counsel on the facts they have deponed.
30. In Macharia v Wanyoike and 3 Others (1981) KLR 4070 , the Court of Appeal held that affidavits must be sworn by persons with first-hand knowledge, not by advocates. The court emphasized that an advocate who swears an affidavit on behalf of their client places themselves in a position where they may be required to be cross-examined, thereby compromising their role as counsel.
31. In Musau & 2 Others v Kiamba (2025) KEELC 3225 , Obaga J upheld a preliminary objection and struck out a supplementary affidavit sworn by an advocate, holding that such affidavits offend the principle of impartiality and risk turning the advocate into a witness.
32. In the present case, the Supporting Affidavit sworn by Mr. Andama deposes to facts that are central to the Application, including the procedural history, the reasons for delay, and the merits of the intended reference. These are matters that should properly have been deposed by the Applicant themselves, or by someone with direct knowledge of the facts.
33. The Applicant's submissions are completely silent on this issue. They have not sought to address or remedy this fundamental procedural defect.
34. This Court takes judicial notice of the fact that the Affidavit was sworn on 24 th March 2025, and the Applicant has had ample opportunity to file a further or supplementary affidavit sworn by the client to cure the defect. They have not done so.
35. I therefore find and hold that the Supporting Affidavit sworn by AMOS ANDAMA is incompetent, irregular, and offends Rule 9 of the Advocates (Practice) Rules. The same is hereby struck out.
36. The effect of striking out the Supporting Affidavit is that the Application stands unsupported. Without a valid affidavit, the Notice of Motion dated 24 th March 2025 is hollow and cannot be sustained.
37. This finding alone is sufficient to dispose of the Application. However, for completeness, I shall proceed to analyze the other issues raised.
38. The Applicant has invoked Paragraph 11(4) of the Advocates Remuneration Order as the source of this Court's jurisdiction to enlarge time.
39. The Respondent correctly points out that the taxation in question relates to Auctioneers' costs, which is governed by the Auctioneers Act, Cap 526 and the Auctioneers Rules.
40. Rule 55 of the Auctioneers Rules provides the framework for taxation of auctioneers' costs and for challenging such taxation. The Applicant ought to have invoked the provisions of the Auctioneers Act and Rules, not the Advocates Remuneration Order.
41. This Court, in its ruling delivered on 13 th March 2025 in Kericho Misc. Application No. E061 of 2024, had already drawn the Applicant's attention to the correct procedural requirements. It is regrettable that the Applicant continues to rely on the wrong legal framework.
42. That said, the Court is not entirely without jurisdiction. Section 3A of the Civil Procedure Act preserves the inherent power of the Court to make such orders as may be necessary for the ends of justice. Additionally, Article 159(2)(d) of the Constitution enjoins the Court to administer justice without undue regard to procedural technicalities.
43. However, jurisdiction alone is not enough. The Applicant must still satisfy the Court that it is a fit and proper case for the exercise of discretion.
44. The principles governing extension of time are now well settled. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR , the Supreme Court laid down the following guiding principles;
i. 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;
ii. A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court;
iii. Whether the court should exercise its discretion to extend time is a consideration to be made on a case-to-case basis;
iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi. Whether the application has been brought without undue delay; and
vii. Whether in certain cases, like election petitions, public interest should be a consideration.
45. In the present case, the Applicant has not provided a satisfactory explanation for the delay of approximately 24 months. The Applicant's explanation focuses entirely on the procedural error in filing the earlier application by Notice of Motion instead of Chamber Summons. That explanation, even if accepted, only accounts for the period up to the ruling of 13 th March 2025. It does not explain why the taxation reference itself was not filed for 24 months prior to that.
46. The Applicant has not told this Court:
· When the taxation was initially done;
· Why they did not file a reference within 14 days as required;
· What they were doing during the 24-month period;
· Why they waited until after the dismissal of their application for stay to seek leave to file a reference.
47. In Salat (supra), the Supreme Court emphasized that an applicant must provide a "reasonable reason for the delay." A blanket statement that the delay arose from "procedural oversight" without more is insufficient, especially for a delay of this magnitude.
48. I find that the Applicant has failed to discharge the burden of explaining the inordinate delay to the satisfaction of this Court.
49. The Applicant relies heavily on Article 159(2)(d) of the Constitution and the overriding objective under Sections 1A and 1B of the Civil Procedure Act.
50. While the Court is guided by the principle that justice should not be defeated by procedural technicalities, this principle is not a blank cheque for litigants to disregard procedural rules altogether. As was stated in Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR;
"The rules of procedure are handmaids of justice and not mistresses. We reiterate that the handmaiden analogy ought not to be stretched too far, and that rules of procedure have their own intrinsic purpose, which is to facilitate, and not to obstruct, the course of justice."
51. Procedure exists to serve the fair and efficient administration of justice. A litigant who consistently flouts procedure cannot hide behind Article 159 to shield their indolence.
52. The Respondent has submitted that the Applicant has filed multiple applications on the same issue, and that this is the 5 th such application. While the Court does not have the full record before it, the impression created is one of a litigant who is more interested in delaying the Respondent's recovery of costs than in genuinely pursuing a reference.
53. The earlier application sought stay orders. The Applicant did not challenge the taxation itself. It is only now, after the dismissal of their stay application, that they seek to file a reference. This suggests an afterthought.
54. The Applicant alleges violation of Articles 47 and 50 of the Constitution.
55. The Respondent correctly submits that constitutional issues cannot be raised by way of affidavit in a miscellaneous application. In Mumo Matemo v Trusted Society of Human Rights Alliance [2013] eKLR, the Court of Appeal emphasized the importance of procedural propriety in constitutional litigation.
56. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules) require that constitutional petitions be filed in accordance with Rule 4. A miscellaneous application is not the proper vehicle for raising substantive constitutional grievances.
57. Even if the Court were to consider the constitutional arguments on their merits, the Applicant has not demonstrated, through a properly sworn affidavit from the client, how their rights were violated. The allegations remain generalized and unsubstantiated.
58. The Respondent submits that he waited for over 24 months to recover their lawfully taxed costs. It has been forced to defend multiple applications, incurring further legal expenses. He is an officer of the court who rendered services as ordered by the court and are entitled to be paid.
59. In Patel v E.A. Cargo Handling Services Ltd [1974] EA 75 , the court held that the main concern in such applications is to do justice to the parties and that any prejudice can be compensated by costs.
60. However, the question is not whether costs can compensate the Respondent, but whether it is just, in all the circumstances, to compel the Respondent to wait even longer for his money while the Applicant pursues a reference that it had to wait for 24 months to file.
61. The Respondent's prejudice is real and continuing. Every additional application, every court attendance, every set of submissions adds to the costs he incurs in defending what should have been a simple recovery of taxed costs.
62. I find that the Respondent has demonstrated substantial prejudice.
63. Under Section 27 of the Civil Procedure Act, costs follow the event. The successful party is entitled to costs unless the Court, for good reason, orders otherwise.
64. The Applicant has failed in its Application. The Respondent is entitled to costs.
65. For the reasons set out above, I make the following orders:
(a) The Notice of Motion dated 24 th March 2025 is hereby dismissed.
(b) The Applicant should pay the Respondent's costs of this Application.
Dated, signed and delivered at Kericho this 26 th day of February, 2026.
J. K. SERGON
JUDGE
In the Presence of :-
C/Assistant – Rutoh
No Appearance
1 | Page
( a) THAT this Honourable Court grants leave to the Applicant to file a taxation reference out of time.
(b) THAT the taxation reference be deemed properly filed upon such leave being granted.
(c) THAT costs of this application be provided for at the conclusion of the taxation reference.
(d) THAT any other relief that this Honourable court deems just and equitable to be granted.
2. The Application is supported by the Affidavit sworn by AMOS ANDAMA , an Advocate of the High Court of Kenya representing the Applicant.
3. The motion is brought under Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (Cap. 21), and Articles 50 and 159 of the Constitution of Kenya, 2010.
4. The Respondent opposed the Application by filing a Replying Affidavit. He also filed written submissions.
5. The Respondent herein, Hezron Getuma Onsongo T/A Hegeons Auctioneers , rendered auctioneering services pursuant to a lawful court process. Thereafter, the Respondent's bill of costs was taxed and allowed in the sum of Kshs. 247,609.00.
6. The Applicant, being aggrieved by the said taxation, sought to challenge the same through Kericho Miscellaneous Application No. E061 of 2024.
7. On 13 th March 2025, this Honourable Court delivered a ruling in the said matter dismissing the Applicant's application. The dismissal was premised on the ground that the Applicant had moved the court by way of Notice of Motion instead of a Chamber Summons as required under the applicable rules of procedure.
8. The Applicant now seeks leave to file a taxation reference out of time, contending that the earlier dismissal was based on a procedural technicality and not on the substantive merits of the case.
9. The Respondent opposed the Application, arguing that the delay of approximately 24 months is inordinate and unexplained, that the supporting affidavit sworn by the Applicant's advocate is incompetent, that the Applicant has invoked the wrong legal framework, and that granting the Application would prejudice the Respondent who has waited for too long to recover his lawfully taxed costs.
10. The Applicant, through their written submissions dated 20 th August 2025, has advanced various arguments.
11. On Jurisdiction, the Applicant submits that this Court has jurisdiction to grant leave to file a taxation reference out of time under Paragraph 11(4) of the Advocates Remuneration Order (ARO), which expressly vests the Court with discretionary power to enlarge time for filing either the notice or the reference. Reliance is placed on Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Ltd (2) [2006] 1 EA 5 and Muri Mwaniiki & Wamiti Advocates v African Banking Corporation Ltd [2015] eKLR .
12. On Fair Hearing, the Applicant contends that the taxation was conducted without according them a fair opportunity to be heard, thereby violating Articles 47 and 50 of the Constitution. They cite Masumbuko Yerry Kombe v Kibiwoort Koross & another [2014] eKLR for the proposition that the right to a fair hearing is inviolable.
13. On the Earlier Dismissal, the Applicant argues that the dismissal of Kericho Misc. Application No. E061 of 2024 was based on a technical defect in the mode of filing, not on the merits. He invoked Order 51 Rule 10(2) of the Civil Procedure Rules, which provides that no application shall be defeated on a technicality or for want of form that does not affect the substance of the application.
14. On Article 159(2)(d), the Applicant heavily relies on the constitutional edict that justice shall be administered without undue regard to procedural technicalities. He cited E. Muriu Kamau & Another v. National Bank of Kenya Ltd., CA No. 258 of 2009 and Sangram Singh v Election Tribunal Koteh 1955 AIR 425 to underscore the importance of substantive justice.
15. On Prejudice, the Applicant submits that any prejudice occasioned to the Respondent can be adequately compensated by an award of costs, including "throw-away costs." He cited Patel v E.A. Cargo Handling Services Ltd [1974] EA 75 and Shah v Mbogo & Another [1967] EA 116 .
16. The Applicant prays that the Application be allowed to enable the Court to determine the substantive issues in the taxation reference.
17. The Respondent, through their written submissions dated 16 th October 2025, has raised the following objections;
18. On the Supporting Affidavit, the Respondent submits that the Affidavit in support of the Application was sworn by AMOS ANDAMA, the Advocate on record for the Applicant. This, they argue, offends Rule 9 of the Advocates (Practice) Rules, which provides that:
"No Advocate may appear as counsel in any matter in which he has sworn or is to swear an Affidavit."
19. The Respondent contends that the Advocate has turned himself into a litigant and a witness, thereby compromising the principle of impartiality. He cited Musau & 2 Others v Kiamba (2025) KEELC 3225 and Macharia v Wanyoike & 3 Others (1981) KLR 4070 for the proposition that such affidavits are incompetent and ought to be struck out.
20. On Inordinate Delay, the Respondent submits that the Applicant has delayed for approximately 24 months in filing the taxation reference. He argue that no credible or sufficient explanation has been offered for this delay. He invoked the maxim "equity aids the vigilant, not the indolent" and cited Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR , where the Supreme Court held that extension of time is not a right but an equitable remedy available only to a deserving party.
21. On the Applicable Law, the Respondent argues that the Applicant has invoked the wrong legal framework. They submit that the taxation in question relates to Auctioneers' costs, which is governed by Rule 55 of the Auctioneers Act and the Auctioneers Rules, not the Advocates Remuneration Order. He contends that this Court was gracious enough in the previous ruling to guide the Applicant on the correct procedure, yet the Applicant persists in relying on the wrong provisions.
22. On Previous Adjudication, the Respondent submits that the earlier application (Kericho HC Misc. Appl No. E061 of 2024) was heard substantively. The Applicant only sought stay orders and did not challenge the taxation itself. Therefore, this application is an afterthought intended to further delay the conclusion of the matter.
23. On Constitutional Issues, the Respondent argues that constitutional allegations cannot be raised by way of an affidavit in a miscellaneous application. Such issues must be raised in a formal constitutional petition under the Mutunga Rules. They cite Mumo Matemo v Trusted Society of Human Rights Alliance [2013] eKLR.
24. On Prejudice, the Respondent submits that he has waited for over 24 months to recover his lawfully taxed costs. He argued that he has been subjected to numerous litigations by the Applicant, incurring further expenses, therefore granting the Application would perpetuate this injustice.
25. The Respondent prays that the Application be dismissed with costs.
27. The Respondent has raised an objection to the competency of the Supporting Affidavit sworn by AMOS ANDAMA , the Advocate on record for the Applicant.
28. Rule 9 of the Advocates (Practice) Rules is explicit;
"No Advocate may appear as counsel in any matter in which he has sworn or is to swear an Affidavit."
29. The rationale behind this rule is sound, an advocate cannot be both counsel and witness in the same matter. The roles are distinct and must remain separate to preserve the integrity of the legal profession and the impartiality of the judicial process. An advocate who swears an affidavit becomes a witness, and it would be improper for them to then address the court as counsel on the facts they have deponed.
30. In Macharia v Wanyoike and 3 Others (1981) KLR 4070 , the Court of Appeal held that affidavits must be sworn by persons with first-hand knowledge, not by advocates. The court emphasized that an advocate who swears an affidavit on behalf of their client places themselves in a position where they may be required to be cross-examined, thereby compromising their role as counsel.
31. In Musau & 2 Others v Kiamba (2025) KEELC 3225 , Obaga J upheld a preliminary objection and struck out a supplementary affidavit sworn by an advocate, holding that such affidavits offend the principle of impartiality and risk turning the advocate into a witness.
32. In the present case, the Supporting Affidavit sworn by Mr. Andama deposes to facts that are central to the Application, including the procedural history, the reasons for delay, and the merits of the intended reference. These are matters that should properly have been deposed by the Applicant themselves, or by someone with direct knowledge of the facts.
33. The Applicant's submissions are completely silent on this issue. They have not sought to address or remedy this fundamental procedural defect.
34. This Court takes judicial notice of the fact that the Affidavit was sworn on 24 th March 2025, and the Applicant has had ample opportunity to file a further or supplementary affidavit sworn by the client to cure the defect. They have not done so.
35. I therefore find and hold that the Supporting Affidavit sworn by AMOS ANDAMA is incompetent, irregular, and offends Rule 9 of the Advocates (Practice) Rules. The same is hereby struck out.
36. The effect of striking out the Supporting Affidavit is that the Application stands unsupported. Without a valid affidavit, the Notice of Motion dated 24 th March 2025 is hollow and cannot be sustained.
37. This finding alone is sufficient to dispose of the Application. However, for completeness, I shall proceed to analyze the other issues raised.
38. The Applicant has invoked Paragraph 11(4) of the Advocates Remuneration Order as the source of this Court's jurisdiction to enlarge time.
39. The Respondent correctly points out that the taxation in question relates to Auctioneers' costs, which is governed by the Auctioneers Act, Cap 526 and the Auctioneers Rules.
40. Rule 55 of the Auctioneers Rules provides the framework for taxation of auctioneers' costs and for challenging such taxation. The Applicant ought to have invoked the provisions of the Auctioneers Act and Rules, not the Advocates Remuneration Order.
41. This Court, in its ruling delivered on 13 th March 2025 in Kericho Misc. Application No. E061 of 2024, had already drawn the Applicant's attention to the correct procedural requirements. It is regrettable that the Applicant continues to rely on the wrong legal framework.
42. That said, the Court is not entirely without jurisdiction. Section 3A of the Civil Procedure Act preserves the inherent power of the Court to make such orders as may be necessary for the ends of justice. Additionally, Article 159(2)(d) of the Constitution enjoins the Court to administer justice without undue regard to procedural technicalities.
43. However, jurisdiction alone is not enough. The Applicant must still satisfy the Court that it is a fit and proper case for the exercise of discretion.
44. The principles governing extension of time are now well settled. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR , the Supreme Court laid down the following guiding principles;
i. 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;
ii. A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court;
iii. Whether the court should exercise its discretion to extend time is a consideration to be made on a case-to-case basis;
iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi. Whether the application has been brought without undue delay; and
vii. Whether in certain cases, like election petitions, public interest should be a consideration.
45. In the present case, the Applicant has not provided a satisfactory explanation for the delay of approximately 24 months. The Applicant's explanation focuses entirely on the procedural error in filing the earlier application by Notice of Motion instead of Chamber Summons. That explanation, even if accepted, only accounts for the period up to the ruling of 13 th March 2025. It does not explain why the taxation reference itself was not filed for 24 months prior to that.
46. The Applicant has not told this Court:
· When the taxation was initially done;
· Why they did not file a reference within 14 days as required;
· What they were doing during the 24-month period;
· Why they waited until after the dismissal of their application for stay to seek leave to file a reference.
47. In Salat (supra), the Supreme Court emphasized that an applicant must provide a "reasonable reason for the delay." A blanket statement that the delay arose from "procedural oversight" without more is insufficient, especially for a delay of this magnitude.
48. I find that the Applicant has failed to discharge the burden of explaining the inordinate delay to the satisfaction of this Court.
49. The Applicant relies heavily on Article 159(2)(d) of the Constitution and the overriding objective under Sections 1A and 1B of the Civil Procedure Act.
50. While the Court is guided by the principle that justice should not be defeated by procedural technicalities, this principle is not a blank cheque for litigants to disregard procedural rules altogether. As was stated in Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR;
"The rules of procedure are handmaids of justice and not mistresses. We reiterate that the handmaiden analogy ought not to be stretched too far, and that rules of procedure have their own intrinsic purpose, which is to facilitate, and not to obstruct, the course of justice."
51. Procedure exists to serve the fair and efficient administration of justice. A litigant who consistently flouts procedure cannot hide behind Article 159 to shield their indolence.
52. The Respondent has submitted that the Applicant has filed multiple applications on the same issue, and that this is the 5 th such application. While the Court does not have the full record before it, the impression created is one of a litigant who is more interested in delaying the Respondent's recovery of costs than in genuinely pursuing a reference.
53. The earlier application sought stay orders. The Applicant did not challenge the taxation itself. It is only now, after the dismissal of their stay application, that they seek to file a reference. This suggests an afterthought.
54. The Applicant alleges violation of Articles 47 and 50 of the Constitution.
55. The Respondent correctly submits that constitutional issues cannot be raised by way of affidavit in a miscellaneous application. In Mumo Matemo v Trusted Society of Human Rights Alliance [2013] eKLR, the Court of Appeal emphasized the importance of procedural propriety in constitutional litigation.
56. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules) require that constitutional petitions be filed in accordance with Rule 4. A miscellaneous application is not the proper vehicle for raising substantive constitutional grievances.
57. Even if the Court were to consider the constitutional arguments on their merits, the Applicant has not demonstrated, through a properly sworn affidavit from the client, how their rights were violated. The allegations remain generalized and unsubstantiated.
58. The Respondent submits that he waited for over 24 months to recover their lawfully taxed costs. It has been forced to defend multiple applications, incurring further legal expenses. He is an officer of the court who rendered services as ordered by the court and are entitled to be paid.
59. In Patel v E.A. Cargo Handling Services Ltd [1974] EA 75 , the court held that the main concern in such applications is to do justice to the parties and that any prejudice can be compensated by costs.
60. However, the question is not whether costs can compensate the Respondent, but whether it is just, in all the circumstances, to compel the Respondent to wait even longer for his money while the Applicant pursues a reference that it had to wait for 24 months to file.
61. The Respondent's prejudice is real and continuing. Every additional application, every court attendance, every set of submissions adds to the costs he incurs in defending what should have been a simple recovery of taxed costs.
62. I find that the Respondent has demonstrated substantial prejudice.
63. Under Section 27 of the Civil Procedure Act, costs follow the event. The successful party is entitled to costs unless the Court, for good reason, orders otherwise.
64. The Applicant has failed in its Application. The Respondent is entitled to costs.
65. For the reasons set out above, I make the following orders:
(a) The Notice of Motion dated 24 th March 2025 is hereby dismissed.
(b) The Applicant should pay the Respondent's costs of this Application.
Dated, signed and delivered at Kericho this 26 th day of February, 2026.
J. K. SERGON
JUDGE
In the Presence of :-
C/Assistant – Rutoh
No Appearance
1 | Page