Nyambega Gisesa v National Land Commission & 4 others; Ministry of Lands & Physical Planning & 3 others (Interested Parties)

RULING 1. This ruling is in respect of two applications: Petitioner’s Notice of Motion dated 1st August 2025 and the Fifth Respondent’s Chamber Summons dated 3rd March 2026. 2. Notice of Motion dated 1st August 2025 seeks the following orders: 1. [Spent] 2. That judgment be entered for the Applicant and as against the Respondent for the sum of Ksh. 57,606,500.00 be certified costs plus interest thereon from the date of the Ruling. 3. That the decree do issue accordingly. 4. That the Honorable Court be pleased to grant such further and other relief that may deem just and expedient to grant. 3. The Notice of Motion is based on the grounds, among others, that a ruling on taxation of the Party and Party Bill of Costs in this matter was delivered by the Taxing Master on 27 th December 2024 wherein the bill of costs was taxed at KShs 57,606,500.00, that the costs were certified by the Deputy Registrar as final, due and payable to the Petitioner/Applicant and that no reference was lodged within the prescribed period. ELCPet No. E001 of 2023 (Nyamira) Page 2 of 15

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4. The Notice of Motion is supported by an affidavit sworn by the Petitioner/Applicant. He reiterated the matters stated in the grounds of the application and annexed a copy of certificate of taxation issued on 30th January 2025 and stated that the Petitioner/Applicant’s Party and Party Bill of Costs in this matter was taxed on 27th December 2024 and allowed as against the Fourth Respondent/Cross Petitioner and the Fifth Respondent jointly and severally in the sum of KShs 57,606,500.00. 5. The Fifth Respondent opposed the Notice of Motion through Grounds of Opposition dated 3rd March 2026 in which it contended that it had filed Chamber Summons dated 3 rd March 2026 seeking leave to file a reference against the taxation and that it was fair and in the interest of orderly administration of justice that the Chamber Summons be determined first before the taxation ruling is adopted as an executable judgement. It further contended that all intended appellate and review proceedings against the taxation ruling ought to be exhausted before it is adopted as an executable judgement and decree. It prayed that the Notice of Motion be stayed pending determination of the Chamber Summons. 6. In Chamber Summons dated 3rd March 2026, the Fifth Respondent sought the following orders: 1. Spent ELCPet No. E001 of 2023 (Nyamira) Page 3 of 15

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2. This Honourable Court be pleased to grant the Honourable County Attorney - Nyamira, leave to come on record in representation of the 5th Respondent in place of Omesa Mogeni & Company Advocates; 3. This Honourable Court be pleased to grant the 5 th Respondent leave to issue a notice of objection to the taxation master's ruling herein of 27.12.2024 and take out reference proceedings under paragraph 11 of the Advocates Remuneration Order out of time; 4. The Learned Deputy Registrar's decision on taxation under item no. 1 (instruction fees) vide his ruling delivered on 27.12.2024 be set aside and be taxed afresh or in the alternative in its place the Honourable Judge be pleased to freshly determine the amounts properly payable under the said item; 5. Costs of this application be in the court's discretion. 7. The Chamber Summons is based on the grounds listed on its face and is supported by an affidavit sworn by Erastus M. Orina, the County Attorney, Nyamira County. He deposed that there exist substantial and binding legal grounds for the party and party costs herein to be taxed afresh in light of this Court’s pronouncement in Nyamira ELCLMISC No. E002 of 2025 Nyamira County Government vs. Omesa Mogeni and Company Advocates and that it was in the interest of justice that the orders sought in the application be granted. ELCPet No. E001 of 2023 (Nyamira) Page 4 of 15

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8. Mr Orina also deposed that the firm of Omesa Mogeni & Company Advocates had been on record for the Fifth Respondent and that the said firm did not inform the Fifth Respondent of both the delivery of the taxation ruling and its outcome within the timelines. That the Fifth Respondent was aggrieved by the ruling, particularly as concerns instruction fees, in view of the aforesaid decision in Nyamira ELCLMISC No. E002 of 2025. He further deposed that the Deputy Registrar erred in arriving at instruction fees of KShs 50,000,000 which amount was arbitrary, astronomical and not commensurate with the nature of the work and legal services involved. 9. The Petitioner opposed Chamber Summons dated 3 rd March 2026 through Replying Affidavit sworn on 27 th April 2026. He deposed that the Fifth Respondent’s claim of ignorance was false and that on 27th December 2024 the Deputy Registrar delivered two rulings; one being in respect of the subject Party and Party Bill of Costs and the other being in respect of Advocate Client Bill of Costs in Nyamira ELCLMISC Application No. E011 of 2024. 10.The Petitioner further deposed that the Fifth Respondent subsequently filed a reference, being Nyamira ELCLMISC No. E002 of 2025, against the taxation in the Advocate Client Bill of Costs. That the reference was heard and determined through ruling delivered on 18th September 2025 and that the issue of taxation of the Party and Party Bill of Costs was ELCPet No. E001 of 2023 (Nyamira) Page 5 of 15

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expressly raised at paragraph 4 of the ruling. That, consequently, despite being aware of the taxation of the Party and Party Bill of Costs as early as the year 2025, the Fifth Respondent failed to file any reference within the stipulated period. 11.The Petitioner also deposed that the Chamber Summons had been filed after an inordinate and unexplained delay of approximately fourteen months from the date of taxation and five months after the ruling in respect of the Advocate Client reference. 12.Both applications were canvassed through written submissions. Learned Litigation Counsel appearing for the Second Respondent and the First Interested Party informed the Court that the said parties would not participate in the hearing of the applications since they were unaffected by the orders sought therein. The rest of the Respondents and Interested Parties neither filed responses nor submissions. 13.The Fifth Respondent filed submissions dated 11 th May 2026. It relied on Paragraph 11(4) of the Advocates (Remuneration) Order and the case of Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (Application 12 (E021) of 2021) [2022] KESC 3 (KLR) (10 February 2022) (Ruling) and argued that the Court had jurisdiction and discretion to enlarge the time for filing objection and reference against a taxation decision. It was ELCPet No. E001 of 2023 (Nyamira) Page 6 of 15

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further submitted that the Fifth Respondent’s erstwhile advocates did not inform it of the taxation ruling of 27 th December 2024 and that such a failure by an advocate should not be visited on the client. The case of Chabari v Tharaka Nithi County Government & another (Civil Appeal 293 of 2019) [2025] KECA 558 (KLR) (28 March 2025) (Judgment) was cited in support of that argument. 14.It was further argued that the doctrines of stare decisis and legality necessitated extension of time within which to file a reference since the taxing master’s decision on instruction fees could not stand in view of the Court’s pronouncements in Nyamira ELCLMISC No. E002 of 2025 Nyamira County Government vs. Omesa Mogeni and Company Advocates and further due to public interest considerations since public funds to the tune of KShs 57,606,500 stood to be paid out. Consequently, the Fifth Respondent urged the Court to allow its application. 15.The Petitioner filed submissions dated 2 nd June 2025 in which it submitted that the delay was inordinate and inexcusable and that the explanation offered by the Fifth Respondent was dishonest and untenable. The Petitioner relied on the case of Njuguna v Nabala, Civil Application E100 of 2016 [2025] KECA 2072 (KLR) and argued that the Fifth Respondent was served with pleadings that explicitly stated that the Party and Party Bill of Costs had been taxed and remained unchallenged. That it is inconceivable that a litigant who actively prosecuted ELCPet No. E001 of 2023 (Nyamira) Page 7 of 15

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a reference intimately connected to the same taxation event was unaware of the parallel ruling on the Party and Party Bill of Costs despite the issue of unchallenged taxation having been captured in the ruling delivered on 18th September 2025. 16.It was further submitted that having actively litigated in the reference arising from the Advocate Client taxation, the Fifth Respondent could not approbate and reprobate and that it had not approached the Court with clean hands. It was also contended that an applicant seeking extension of time must provide a full and honest explanation for the delay and could not invoke public interest and involvement of public funds to avoid compliance with procedural timelines. 17.In closing, it was submitted that the taxed costs were lawfully assessed by a taxing officer and that allowing the application would cause the Petitioner substantial prejudice. It was further contended that the Fifth Respondent was bound by the acts and omissions of its advocates. Consequently, the Petitioner urged the Court to dismiss Chamber Summons dated 3 rd March 2026 with costs. 18.I have carefully considered the applications, the affidavits, grounds of opposition and the submissions. The issues that arise for determination are whether leave should be granted to the Honourable County Attorney to come on record for the Fifth Respondent, whether enlargement of time to file a reference against the taxation ruling delivered on 27 th ELCPet No. E001 of 2023 (Nyamira) Page 8 of 15

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December 2024 should be granted, whether the Deputy Registrar's decision on taxation under item no. 1 (instruction fees) should be set aside and whether judgment should be entered for the Petitioner as prayed. 19.The prayer that the Honourable County Attorney – Nyamira comes on record for the Fifth Respondent in place of the firm of Omesa Mogeni & Company Advocates is not opposed. I note that pursuant to Section 7 of the Office of the County Attorney Act, the County Attorney is the principal legal adviser to the Fifth Respondent and its ideal legal representative in civil proceedings in court. Parties have a constitutional right to choose their legal representation. Such choice should not be interfered with unless there are compelling reasons to do so. No reason has been advanced to warrant keeping the Fifth Respondent from being represented by its County Attorney. Consequently, I will allow the prayer. 20.I now consider whether enlargement of time to file a reference against the taxation ruling delivered on 27 th December 2024 should be granted. Pursuant to Paragraph 11 (1) of the Advocates Remuneration Order, a party who wishes to object to the decision of the taxing officer is required to give notice in writing to the taxing officer of the items of taxation to which she objects within fourteen days after the decision. It is only after the taxing officer avails the reasons for her decision that the aggrieved party or objector may file a reference to a Judge by way of Chamber Summons. ELCPet No. E001 of 2023 (Nyamira) Page 9 of 15

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21.In terms of Paragraph 11 (4) of the Advocates Remuneration Order, the Court has power in its discretion to enlarge time for giving notice of objection or filing reference notwithstanding that the time sought to be enlarged may have already expired. 22.The principles applicable to an application for extension of time are well settled. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court stated that extension of time is not a right of a party but an equitable remedy available at the discretion of the Court; that the party seeking extension bears the burden of laying a basis to the satisfaction of the Court; that the discretion is to be exercised on a case-by-case basis; that the delay must be satisfactorily explained; that the Court should consider whether the respondent will suffer prejudice; whether the application has been brought without undue delay; and, where applicable, whether public interest ought to be taken into account. 23.The foregoing principles have been consistently applied in applications for enlargement of time. See Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (supra) and Yooshin Engineering Corporation v AIA Architects Limited [2025] KECA 855 (KLR). 24.In the present matter, it is common ground that the Fifth Respondent’s Chamber Summons dated 3 rd March 2026 was ELCPet No. E001 of 2023 (Nyamira) Page 10 of 15

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filed on 17th March 2026, some Fourteen months after the taxation of the Party and Party Bill of Costs. That is a long and inordinate delay which calls for a satisfactory explanation. 25.The Fifth Respondent’s explanation for the delay is that its then advocate on record failed to notify it of the taxation and that it only became aware of the issue in the course of related proceedings concerning the Advocate Client Bill of Costs. The Petitioner contests this explanation and submits that the Applicant was aware of the taxation proceedings by reason of its participation in the taxation of the Advocate Client Bill of Costs and that the failure to challenge the taxation of the Party and Party Bill of Costs for fourteen months disentitles the Fifth Respondent to the exercise of the Court's discretion. 26.As noted above, the delay of Fourteen months is long and inordinate. Nevertheless, the length of delay, though an important consideration, is not by itself determinative. The Court must consider the explanation for the delay together with the circumstances of the case, the prejudice to the respective parties, the arguability of the intended reference and the broader interests of justice, including public interest. 27.The Fifth Respondent has asserted that it was not aware of the taxation since it was not notified by its advocates then on record. On the other hand, the Petitioner has argued strongly that the Fifth Respondent was aware or ought to have been ELCPet No. E001 of 2023 (Nyamira) Page 11 of 15

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aware in view of the activities surrounding taxation of the Advocate Client Bill of Costs and the ensuing reference. 28.At this interlocutory stage, the Court is not required to conclusively determine whether the Fifth Respondent had actual knowledge of the taxation. Instead, the Court has to determine whether the circumstances disclosed in the application provide a sufficient basis upon which the Court may exercise its discretion to enlarge time. In that context, I note that the Fifth Respondent has all along been represented by the firm of Omesa Mogeni & Company Advocates. It is against that background that I view the Fifth Respondent’s contention that the said firm did not inform it of the taxation. It is a possibility that it was not informed. If that be the case, I bear in mind that Courts have severally held that mistakes of counsel should not be visited on litigants. 29.An important consideration in the context of the present application is potential prejudice to the Petitioner who has argued that he will be prejudiced. The Fifth Respondent is seeking to have the taxation reconsidered at an appellate level. The outcome of such a judicial process cannot be said to be unjust since all that is sought to be determined is whether the quantum of Party and Party fees was properly arrived at. Any party aggrieved by the outcome of the proposed reference would be at liberty to appeal further to the Court of Appeal. I see no prejudice in the circumstances beyond what can be compensated by award of costs. ELCPet No. E001 of 2023 (Nyamira) Page 12 of 15

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30.There is no dispute that the Fifth Respondent is a level of government and that settlement of any resulting decree would have to be out of public funds. Prudent and responsible utilisation of public funds is a mandatory constitutional edict under Article 201 (d) of the Constitution. In that regard, the Court cannot disregard public interest in the matter, as indeed the Supreme Court held in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (supra) and Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (supra). It is in public interest that the quantum of Party and Party fees be justly determined before public funds are committed. I am satisfied that the Fifth Respondent has made a case for exercise of discretion in its favour, to enlarge time. 31.The remaining issues for determination are whether the Deputy Registrar's decision on taxation under item no. 1 (instruction fees) should be set aside and whether judgment should be entered for the Petitioner as prayed. At this point, no valid reference is before the Court. The Fifth Respondent will have to comply with Paragraph 11 (1) of the Advocates Remuneration Order by giving notice in writing to the taxing officer of the items of taxation to which it objects within such enlarged period as the Court will give and thereafter filing a reference if it is dissatisfied with reasons given. 32.It would be premature for the Court to consider a non-existent reference at this point or even for the Court to enter judgment ELCPet No. E001 of 2023 (Nyamira) Page 13 of 15

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based on the existing certificate of taxation. Whereas the parties have spent some time arguing on whether the quantum of Party and Party costs was properly arrived at, I have avoided that issue. The Court will have an opportunity to determine it once a valid reference is filed and parties are heard on it. 33.Arising from the foregoing, I make the following orders: a) Leave is Attorney granted - to Nyamira the to Honourable come on County record in representation of the Fifth Respondent in place of the firm of Omesa Mogeni & Company Advocates. b) Time within which the Fifth Respondent may object to the decision of the Taxing Officer comprised in the ruling delivered on 27th December 2024 and file a reference is hereby enlarged. c) The Fifth Respondent to file and serve notice of objection within seven (7) days of the delivery of this ruling. Any ensuing reference to be filed within fourteen (14) days of receipt of the reasons. d) In default of timely compliance with (c) above, leave so granted shall lapse and the Petitioner’s Notice of Motion dated 1st August 2025 shall be set down for hearing. ELCPet No. E001 of 2023 (Nyamira) Page 14 of 15

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e) The Fifth Respondent shall have costs of Chamber Summons dated 3rd March 2026. Dated, signed, and delivered at Nyamira, this 7th day of October 2026. D. O. OHUNGO JUDGE Delivered in the presence of: Mr Maeche for the Petitioner No appearance for the Respondents No appearance for the Interested Parties Court Assistant: B Kerubo ELCPet No. E001 of 2023 (Nyamira) Page 15 of 15

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