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Court of AppealDismissedNot stated in the judgment

Yooshin Engineering Corporation v AIA Architects Limited (Civil Appeal (Application) 147 of 2019) [2025] KECA 855 (KLR)

Court of Appeal
7 March 2025
1,197 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Court of Appeal in Mombasa refused to excuse a 10-month unexplained delay in challenging a taxed legal bill, dismissing the application with costs.

What this practically means

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Executive summary

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By a motion dated 6th March 2024, the applicant, the respondent in a pending appeal, sought leave to refer out of time a bill of costs taxed on 27th February 2023 at Kshs. 2,033,530, of which Kshs. 1,016,765 was awarded to the appellant in the appeal pursuant to a court order for half costs. Rule 117(4) of the Court of Appeal Rules, 2022 prescribes seven days for seeking a reference after a taxation decision, which had lapsed. The applicant also sought a stay of execution of the certificate of costs and a reduction of instruction fees of Kshs. 2,000,000. Tuiyott JA, sitting as a single judge, held that although Rule 4 empowers a single judge to extend time, orders of stay of execution fall under Rule 5(2)(b) and must be heard by the full Court, so only the extension-of-time limb was before him. The applicant asserted it was never served with notice of taxation and only learned of the ruling and certificate when the respondent's advocates forwarded them on 12th May 2023; the court accepted delay up to that date could be accounted for, noting the 27th April 2023 email forwarding the certificate went only to the respondent's advocates. However, the applicant offered no explanation for the roughly ten-month gap between 12th May 2023 and 6th March 2024. Applying the Fakir Mohamed v Joseph Mugambi & 2 others [2005] eKLR factors, the court found inordinate and unexplained delay, dismissed the motion with costs to the respondent, and declined to entertain the substantive reference and stay prayers.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave to file a reference against the taxing officer's ruling out of time
  2. 2.Whether the delay of about 10 months in bringing the application was explained and excusable

Key legal issues

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01

Whether the delay in seeking a reference out of time should be excused

Holding

The delay of about 10 months from knowledge of the taxing decision (12th May 2023) to filing (6th March 2024) was inordinate and unexplained; leave refused and motion dismissed.

Reasoning

The court accepted that the applicant's advocates were only fully notified of the certificate of costs and ruling by the respondent's advocates' email of 12th May 2023, so delay up to then could be accounted for. However, the applicant gave no explanation for the further roughly 10 months before filing the motion on 6th March 2024. Applying the Fakir Mohamed factors, unexplained inordinate delay justified dismissal.

p. 3
02

Service and knowledge of the taxation proceedings

Holding

Although the applicant claimed it was unaware of taxation, evidence showed its advocates were notified of the ruling date; only the forwarding of the certificate and ruling went solely to the respondent's advocates.

Reasoning

The court found the respondent's assertion that the applicant was copied in all emails not entirely true: the 27th April 2023 email forwarding the certificate of costs was addressed only to the respondent's advocates. However, the respondent's advocates' email of 12th May 2023 made the applicant aware, fixing the start of the unexplained delay.

p. 3

Legal principles established

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  • Extension of time under Rule 4 is discretionary and guided by settled factors including length of and reason for delay, prejudice, and compliance with time limits
  • A single judge cannot grant a stay of execution pending appeal; such applications must be heard by the full Court under Rule 5(2)(b)

Court orders

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  1. 1.The Notice of Motion dated 6th March 2024 is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Court of Appeal (ruling of the taxing officer, Hon. Adika)
Not stated
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension of time), before a single judge

Relief refused

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Extension of time to refer the taxed bill to a Judge

Inordinate and unexplained delay of about 10 months

p. 3

Stay of execution of the certificate of costs

Rule 5(2)(b) requires such applications to be heard by the full Court, not a single judge

p. 2

Reduction of instruction fees of Kshs. 2,000,000 and costs of the suit

Not reached; the motion was dismissed for inordinate delay

Costs

Costs of the application to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factors
p. 3Factors for extension of time under Rule 4
I must therefore find, and so hold, that there has been an inordinate and unexplained delay in bringing the Notice of Motion of 6th March 2024 which is hereby dismissed with costs to the respondent.
p. 3Final orders - dismissal for inordinate delay
Whereas, as a single judge, I have powers under Rule 4 of the Rules of this Court to extend time for the doing of any act authorized or required by the Rules, I do not have like powers to grant orders for stay of execution as Rule 5(2)(b) requires such an application to be heard by the Court.
p. 2Limits of a single judge's powers

Issues in the judgment

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minor

The judgment states the taxing ruling was dated 27th February 2023 yet elsewhere refers to taxation coming up on 23rd November 2022; the七-day window and the reference date calculations rest on these dates but the judgment does not reconcile the gap between taxation (November 2022) and ruling (February 2023).

minor

The judgment refers to a seven-day period for seeking a reference but the ruling of 27th February 2023 was only forwarded to the respondent's advocates on 27th April 2023; the applicant's assertion of being unaware is contradicted by the respondent's claim of earlier service of the Bill of Costs by email on 18th August 2022.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Yooshin Engineering Corporation v AIA Architects Limited (Civil Appeal (Application) 147 of 2019) [2025] KECA 855 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/855/eng@2025-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.