REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO.27 OF 2020
CONSOLIDATED WITH CIVIL APPEAL NO.28,29,30,31,32,33,AND 34 OF 2020
ROBERT WASILWA MAKHANU……………………..1 ST APPELLANT
CHRISPINUS BARASA WALEKHWA…………….….2 ND APPELLANT
ROBAI IMBITI DACHU………………………….…….3 RD APPELLANT
ROSELYNE NANJALA SIMIYU………………...……4 TH APPELLANT
MAURICE CHEPKWESIS…………………..……….…5 TH APPELLANT
PURITY CHEROP (A MINOR SUING THROUGH FATHER AND NEXT FRIEND
MAURICE CHEPKWESIS)………………………...….6 TH APPELLANT
ALEX KAHEMBA ( A MINOR Suing Through MOTHER AND NEXT FRIEND ROSELYNE NANJALA SIMIYU)………...7 TH APPELLANT
VERSUS
TIGAAD TRANSPORT COMPANY LIMITED…1 ST RESPONDENT
KASSAM ABDULGANI………………………..……2 ND RESPONDENT
OSMAN HUSSEIN MOHAMMED……………...…3 RD RESPONDENT
RULING
1. In a Motion dated 28 th July 2025, the appellants/ applicants are seeking the following orders;
i. Spent
ii. The Appellants be granted leave to appeal to the Court of Appeal against the Ruling and order dated and delivered on 22 nd July 2025 in respect of the Appellant’s reference of objection to taxation dated 16 th September 2024.
iii. The costs of the application be in the cause.
2. The application is brought under Rule 11(3) of the Advocates (Remuneration)Order, Order 51, Rule 1 of the Civil Procedure Rules.
3. The application is supported by the grounds on the face of the application and the affidavit of Robert Wasilwa Makhanu. The applicant states that he learnt from his advocate that a reference he filed in the High Court was dismissed on the grounds that it was filed five (5) months late without the leave of the court. He was surprised to hear this as his reference was filed within the 14 days as prescribed under the Rules. He asserts that he is aggrieved and dissatisfied with the decision of the Court and he wishes to appeal to the Court of Appeal against the decision. He has grounds of appeal with very high chances of success. He has already lodged a notice of appeal.
4. The application was opposed. Kassam Abdulgani, the 2nd respondent, filed a replying affidavit dated 26th September 2026. He deposes that the application dated 28.7.2025 lacks merit, is misconceived, misguided, frivolous, and an abuse of the court process, and he urges the court to dismiss it. The applicants have not provided sufficient and satisfactory reasons for being granted leave to appeal against the ruling delivered on 22.7.2025, and the intended appeal raises no arguable issues with a reasonable chance of success. The court dismissed the reference on 22.7.2025 on the grounds, among others, that the reference was filed five months late without the court's leave. The applicants filed the reference on 16.9.2024, exactly five months after the delivery of the ruling on the bill of costs on 24.4.2024; the applicants did not seek an extension of time to file the reference, as provided under Rule 11 (4) of the Advocates Remuneration Order, before filing it. The applicant failed to attach the ruling against which he intends to appeal, as required by law. The court should not grant leave.
5. I have considered the application, the affidavits filed, and the submissions filed by the parties. The application is brought under Rule 11(3) of the Advocates (Remuneration) Orders. The order provides as follows: Any person aggrieved by the decision of the judge upon any objection referred to such judge under subparagraph (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal .
6. The rule is clear that a person aggrieved by a judge's decision may, with the leave of the judge, appeal to the Court of Appeal. Leave by the court is discretionary and must be exercised judicially (see Showcase Property Limited v Mugambi & Company Advocates [2020] eKLR). The ruling at issue in this application was delivered on 22.7.2025. The application related to this ruling was filed on 25.7.2025. It was filed promptly, with no unreasonable delay. The applicant should have sought leave of the court on the date the ruling was delivered. Although the applicant’s counsel was present, she did not seek leave to appeal. It is possible she forgot to do so, as the application was filed shortly afterwards.
7. The applicants are aggrieved by the court decision and firmly believe that their reference was lodged on time, that the court erred in dismissing their reference, and that they have already filed a Notice of Appeal with the Court of Appeal. I have noted the grounds stated in his memorandum of appeal. Although the applicants have not demonstrated they will suffer any substantial harm, I find that granting the leave sought will not cause prejudice to the Respondents. The applicant is granted leave to appeal against the Ruling and Order dated 22.7.2025 concerning the Appellant’s reference of Objection to Taxation dated 16.9.2024. Costs shall be in the cause.
Dated, signed and delivered at Bungoma this 3 rd Day of March 2026.
R. OUGO
JUDGE
In the presence of:
Miss Amboko - For the Applicants
Wilkister - C/A
Respondents - Absent
hcca no.27 of 2020-ruling 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO.27 OF 2020
CONSOLIDATED WITH CIVIL APPEAL NO.28,29,30,31,32,33,AND 34 OF 2020
ROBERT WASILWA MAKHANU……………………..1 ST APPELLANT
CHRISPINUS BARASA WALEKHWA…………….….2 ND APPELLANT
ROBAI IMBITI DACHU………………………….…….3 RD APPELLANT
ROSELYNE NANJALA SIMIYU………………...……4 TH APPELLANT
MAURICE CHEPKWESIS…………………..……….…5 TH APPELLANT
PURITY CHEROP (A MINOR SUING THROUGH FATHER AND NEXT FRIEND
MAURICE CHEPKWESIS)………………………...….6 TH APPELLANT
ALEX KAHEMBA ( A MINOR Suing Through MOTHER AND NEXT FRIEND ROSELYNE NANJALA SIMIYU)………...7 TH APPELLANT
VERSUS
TIGAAD TRANSPORT COMPANY LIMITED…1 ST RESPONDENT
KASSAM ABDULGANI………………………..……2 ND RESPONDENT
OSMAN HUSSEIN MOHAMMED……………...…3 RD RESPONDENT
RULING
1. In a Motion dated 28 th July 2025, the appellants/ applicants are seeking the following orders;
i. Spent
ii. The Appellants be granted leave to appeal to the Court of Appeal against the Ruling and order dated and delivered on 22 nd July 2025 in respect of the Appellant’s reference of objection to taxation dated 16 th September 2024.
iii. The costs of the application be in the cause.
2. The application is brought under Rule 11(3) of the Advocates (Remuneration)Order, Order 51, Rule 1 of the Civil Procedure Rules.
3. The application is supported by the grounds on the face of the application and the affidavit of Robert Wasilwa Makhanu. The applicant states that he learnt from his advocate that a reference he filed in the High Court was dismissed on the grounds that it was filed five (5) months late without the leave of the court. He was surprised to hear this as his reference was filed within the 14 days as prescribed under the Rules. He asserts that he is aggrieved and dissatisfied with the decision of the Court and he wishes to appeal to the Court of Appeal against the decision. He has grounds of appeal with very high chances of success. He has already lodged a notice of appeal.
4. The application was opposed. Kassam Abdulgani, the 2nd respondent, filed a replying affidavit dated 26th September 2026. He deposes that the application dated 28.7.2025 lacks merit, is misconceived, misguided, frivolous, and an abuse of the court process, and he urges the court to dismiss it. The applicants have not provided sufficient and satisfactory reasons for being granted leave to appeal against the ruling delivered on 22.7.2025, and the intended appeal raises no arguable issues with a reasonable chance of success. The court dismissed the reference on 22.7.2025 on the grounds, among others, that the reference was filed five months late without the court's leave. The applicants filed the reference on 16.9.2024, exactly five months after the delivery of the ruling on the bill of costs on 24.4.2024; the applicants did not seek an extension of time to file the reference, as provided under Rule 11 (4) of the Advocates Remuneration Order, before filing it. The applicant failed to attach the ruling against which he intends to appeal, as required by law. The court should not grant leave.
5. I have considered the application, the affidavits filed, and the submissions filed by the parties. The application is brought under Rule 11(3) of the Advocates (Remuneration) Orders. The order provides as follows: Any person aggrieved by the decision of the judge upon any objection referred to such judge under subparagraph (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal .
6. The rule is clear that a person aggrieved by a judge's decision may, with the leave of the judge, appeal to the Court of Appeal. Leave by the court is discretionary and must be exercised judicially (see Showcase Property Limited v Mugambi & Company Advocates [2020] eKLR). The ruling at issue in this application was delivered on 22.7.2025. The application related to this ruling was filed on 25.7.2025. It was filed promptly, with no unreasonable delay. The applicant should have sought leave of the court on the date the ruling was delivered. Although the applicant’s counsel was present, she did not seek leave to appeal. It is possible she forgot to do so, as the application was filed shortly afterwards.
7. The applicants are aggrieved by the court decision and firmly believe that their reference was lodged on time, that the court erred in dismissing their reference, and that they have already filed a Notice of Appeal with the Court of Appeal. I have noted the grounds stated in his memorandum of appeal. Although the applicants have not demonstrated they will suffer any substantial harm, I find that granting the leave sought will not cause prejudice to the Respondents. The applicant is granted leave to appeal against the Ruling and Order dated 22.7.2025 concerning the Appellant’s reference of Objection to Taxation dated 16.9.2024. Costs shall be in the cause.
Dated, signed and delivered at Bungoma this 3 rd Day of March 2026.
R. OUGO
JUDGE
In the presence of:
Miss Amboko - For the Applicants
Wilkister - C/A
Respondents - Absent
hcca no.27 of 2020-ruling 2