1. The applicant’s application is a motion dated 23 July 2024 expressed to be filed under Section 1A, 1B, 3A, and, Rule 11(4) of the Advocates (Remuneration) Order. The prayers are as follows:
“1. The application be certified a urgent and heard ex-parte in the first instance.
2. Pending the determination of this application the be a stay of execution of the Certification of Taxation dated 15ᵗʰ July 2024 for Kshs. 879,775.00.
3. The court be please to enlarge the time for lodging the reference from the Taxation Ruling dated 19ᵗʰ June 2024 by 14 days from the date of the order of extension.
4. That the leave for extension granted in prayer 3 above do operate as stay of execution of the Ruling of the Taxing Officer aforesaid and any other consequential proceedings.
5. The court be at liberty to make any further orders in the interests of justice.
6. Costs of the application be in the intended Appeal.”.
2. The application is supported by the affidavit of Mr. Frankline Michael Otieno, the learned counsel for the applicant. According to Mr. Otieno, the ruling on the 2ⁿᵈ respondent's Party and Party Bill of Costs dated 5 June 2023 was delivered on 19 June 2024. However, on the material date, he was unable to join the virtual platform on which the proceedings were being conducted because he was not admitted. The applicant is then said to have followed up with registry on the ruling but could not obtain a copy of the ruling.
3. Mr. Otieno has sworn further that “the applicant only became aware of the delivery of the trial court's Judgment, on 18ᵗʰ July 2024 when Counsel for the 2ⁿᵈ respondent sent a letter forwarding the Certificate of Taxation and threatening to commence execution if the sum of Kshs. 879,775.00 , shall not have been paid within 7 days”.
4. It is only after the applicant received the letter that its counsel requested a copy of the ruling from the 2nd respondent’s learned counsel. The applicant learned of the details of the ruling on 18 July 2024 by which time the period within which the applicant could file a reference to the judge had lapsed.
5. The 2nd respondent, whose bill of costs is in contention, opposed the application and her learned counsel, Mr. Waya Ndegwa, swore and filed a replying affidavit to that end. Mr. Ndegwa admits that it is true when the ruling was delivered on 19 June 2024, the applicant was not represented but that on even date, the ruling was posted on the case tracking system portal.
6. The learned counsel has denied that the applicant ever made any attempts to obtain the ruling because if there were such attempts, there would be proof.
7. Paragraph 11 of the Advocates Remuneration Order provides for, among other things, the time within which a reference to the judge against a taxation may be made. It reads as follows:
11. Objection to decision on taxation and appeal to Court of Appeal
(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.
(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.
8. It is not in doubt that the applicant is out of time for filing the reference against the taxing officer’s ruling. In such circumstances, this Honourable Court may exercise its discretion under paragraph 11(4) and enlarged time to file the reference. The question is whether the applicant has made out a case for such exercise of discretion in its favour.
9. Although the learned counsel for the applicant has sworn that he only became aware of the ruling or rather the details of the ruling on 18 July 2024, the court tracking system shows that on 20 June 2024 at 2:02 PM, the parties mapped in this case who obviously include the applicant, were duly informed that the ruling in question had been delivered. This is contrary to Mr. Otieno’s deposition that “the applicant only became aware of the delivery of the trial court's Judgment, on 18ᵗʰ July 2024 when Counsel for the 2ⁿᵈ respondent sent a letter forwarding the Certificate of Taxation and threatening to commence execution…”
10. If Mr. Otieno’s firm of advocates was mapped to the case tracking portal, and it has not been suggested that it hadn’t, counsel must have received an alert of the delivery of the ruling as soon as it was posted on the portal. But even if there was no such alert, nothing stopped the applicant from making enquiries on the portal whether the ruling had been delivered.
11. If the applicant was aware that the ruling had been delivered, as early as 20 June 2024, no reason has been given why it had to wait until 18 July 2024 for its advocates to write to the 2nd respondent’s advocates for a copy of the ruling. The learned counsel could easily have obtained a copy of the ruling from the taxing officer or from the registry.
12. In any case, although Mr Otieno has sworn that “the applicant made several follow ups with the registry but did not obtain a copy of the taxation ruling”, there is no proof of such “follow ups”. There is no evidence of the nature or form that the purported “follow ups” took.
13. Again, if it was to be assumed that the applicant obtained the details of the ruling on 18 July 2024, no reason has been proffered why the applicant filed the instant application on 23 July 2024. Where, in an application such as the one before court, an applicant is seeking extension of time as a result of some delay on the applicant’s part, every passing day counts and the court is owed an explanation for every day that an action which ought to be taken is delayed.
14. In a nutshell, I find the basis of the applicant’s application to be contrary to the available evidence. Secondly, no reason or any valid reason has been proffered as to why the reference or the application for extension of time was not filed promptly. Accordingly, I hold that there is no material before court upon which it can exercise its discretion in favour of the applicant and extend time. The application is dismissed with costs. Order accordingly.
“1. The application be certified a urgent and heard ex-parte in the first instance.
2. Pending the determination of this application the be a stay of execution of the Certification of Taxation dated 15ᵗʰ July 2024 for Kshs. 879,775.00.
3. The court be please to enlarge the time for lodging the reference from the Taxation Ruling dated 19ᵗʰ June 2024 by 14 days from the date of the order of extension.
4. That the leave for extension granted in prayer 3 above do operate as stay of execution of the Ruling of the Taxing Officer aforesaid and any other consequential proceedings.
5. The court be at liberty to make any further orders in the interests of justice.
6. Costs of the application be in the intended Appeal.”.
2. The application is supported by the affidavit of Mr. Frankline Michael Otieno, the learned counsel for the applicant. According to Mr. Otieno, the ruling on the 2ⁿᵈ respondent's Party and Party Bill of Costs dated 5 June 2023 was delivered on 19 June 2024. However, on the material date, he was unable to join the virtual platform on which the proceedings were being conducted because he was not admitted. The applicant is then said to have followed up with registry on the ruling but could not obtain a copy of the ruling.
3. Mr. Otieno has sworn further that “the applicant only became aware of the delivery of the trial court's Judgment, on 18ᵗʰ July 2024 when Counsel for the 2ⁿᵈ respondent sent a letter forwarding the Certificate of Taxation and threatening to commence execution if the sum of Kshs. 879,775.00 , shall not have been paid within 7 days”.
4. It is only after the applicant received the letter that its counsel requested a copy of the ruling from the 2nd respondent’s learned counsel. The applicant learned of the details of the ruling on 18 July 2024 by which time the period within which the applicant could file a reference to the judge had lapsed.
5. The 2nd respondent, whose bill of costs is in contention, opposed the application and her learned counsel, Mr. Waya Ndegwa, swore and filed a replying affidavit to that end. Mr. Ndegwa admits that it is true when the ruling was delivered on 19 June 2024, the applicant was not represented but that on even date, the ruling was posted on the case tracking system portal.
6. The learned counsel has denied that the applicant ever made any attempts to obtain the ruling because if there were such attempts, there would be proof.
7. Paragraph 11 of the Advocates Remuneration Order provides for, among other things, the time within which a reference to the judge against a taxation may be made. It reads as follows:
11. Objection to decision on taxation and appeal to Court of Appeal
(1) Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.
(4) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) far the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.
8. It is not in doubt that the applicant is out of time for filing the reference against the taxing officer’s ruling. In such circumstances, this Honourable Court may exercise its discretion under paragraph 11(4) and enlarged time to file the reference. The question is whether the applicant has made out a case for such exercise of discretion in its favour.
9. Although the learned counsel for the applicant has sworn that he only became aware of the ruling or rather the details of the ruling on 18 July 2024, the court tracking system shows that on 20 June 2024 at 2:02 PM, the parties mapped in this case who obviously include the applicant, were duly informed that the ruling in question had been delivered. This is contrary to Mr. Otieno’s deposition that “the applicant only became aware of the delivery of the trial court's Judgment, on 18ᵗʰ July 2024 when Counsel for the 2ⁿᵈ respondent sent a letter forwarding the Certificate of Taxation and threatening to commence execution…”
10. If Mr. Otieno’s firm of advocates was mapped to the case tracking portal, and it has not been suggested that it hadn’t, counsel must have received an alert of the delivery of the ruling as soon as it was posted on the portal. But even if there was no such alert, nothing stopped the applicant from making enquiries on the portal whether the ruling had been delivered.
11. If the applicant was aware that the ruling had been delivered, as early as 20 June 2024, no reason has been given why it had to wait until 18 July 2024 for its advocates to write to the 2nd respondent’s advocates for a copy of the ruling. The learned counsel could easily have obtained a copy of the ruling from the taxing officer or from the registry.
12. In any case, although Mr Otieno has sworn that “the applicant made several follow ups with the registry but did not obtain a copy of the taxation ruling”, there is no proof of such “follow ups”. There is no evidence of the nature or form that the purported “follow ups” took.
13. Again, if it was to be assumed that the applicant obtained the details of the ruling on 18 July 2024, no reason has been proffered why the applicant filed the instant application on 23 July 2024. Where, in an application such as the one before court, an applicant is seeking extension of time as a result of some delay on the applicant’s part, every passing day counts and the court is owed an explanation for every day that an action which ought to be taken is delayed.
14. In a nutshell, I find the basis of the applicant’s application to be contrary to the available evidence. Secondly, no reason or any valid reason has been proffered as to why the reference or the application for extension of time was not filed promptly. Accordingly, I hold that there is no material before court upon which it can exercise its discretion in favour of the applicant and extend time. The application is dismissed with costs. Order accordingly.