Gakoi Maina & Company Advocates v Directline Assurance Company Limited [2026] KEELRC 15056 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

ELRC MISC APPLICATION NO. E410 OF 2025

GAKOI MAINA & CO ADVOCATES……....…………......…. APPLICANT

VERSUS

DIRECTLINE ASSURANCE COMPANY LIMITED......…RESPONDENT

RULING

Background

1. The Applicant filed the application dated 27th October 2025 seeking the following orders: -

a) That the court enlarges the time within which to file a reference out of time against the ruling of the Taxing Officer dated and delivered on 30th September 2025.

b) That the court deems the draft reference annexed to the application as duly filed upon payment of the requisite court fees.

c) That the court gives directions on costs of the application.

2. The application is anchored on the grounds appearing on the face thereof. It is also supported by the affidavit sworn by Barbara Wendy Mideva, the affiant.

3. The affiant avers that the Taxing Master delivered her ruling on the Advocate – Client Bill of Costs dated 15th July 2025 on 30th September 2025. She avers that the Applicant is aggrieved by the aforesaid decision and proposes to file a reference against it.

4. The affiant avers that the Applicant did not lodge a reference against the ruling within the time which the law provides. She avers that the Applicant was under an honest but mistaken impression that the law allows filing of the reference within 30 days of a taxation ruling.

5. The affiant avers that the Applicant’s failure to file the reference within the stipulated time was not deliberate. She further contends that the delay in filing the reference is not inordinate.

6. The affiant avers that the proposed reference raises triable issues and has overwhelming chances of success. She contends that the Applicant will suffer prejudice if the orders sought are not granted.

7. The Respondent has opposed the application. It has filed Grounds of Opposition to anchor its objection to the motion.

8. The Respondent contends that the application is defective. It asserts that granting the motion will contravene provisions of the Advocates (Remuneration) Order.

9. The Respondent contends that the impugned taxation was properly done. It contends that the Applicant was instructed to compromise a suit which had been filed by minority shareholders and the fees awarded to it (the Applicant) is commensurate to the work that was done.

Analysis

10. The application is filed pursuant to rule 11 of the Advocates (Remuneration) Order. The rule provides as follows: -

i) 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.

ii) 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.

iii) 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.

iv) The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for 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.

11. The rule contemplates enlargement of time to present a notice of objection to a taxation or a reference therefrom out of time. Undoubtedly therefore, the instant application is properly before court.

12. The Respondent has objected to the application on the ground that the Applicant did not give notice of objection to the impugned taxation. As such, it (the Respondent) contends that the application is defective for seeking leave to lodge the reference out of time without first seeking leave to lodge a notice of objection to the taxation ruling.

13. The purpose of a notice of objection to a taxation is to invite the Taxing Master to provide the reasons for his decision on the items captured in the notice. As such, the notice is only necessary in instances where the impugned taxation ruling does not have reasons for the decision.

14. Where the ruling bears the reasons for the decision, the notice is not necessary. As such, a reference may be filed without issuing it (the notice).

15. The above position was clarified in the case of Mirugi Kariuki & Co Advocates v Andrew Isoe Ochoki [2022] KEELC 1128 (KLR) where the learned Judge quoted with approval the following excerpt from the case of Ahmed Nasir Abdikadir & Co. Advocates -vs- National Bank of Kenya Ltd (2006) eKLR: -

“Although rule 11(1) of the Advocates Remuneration Order stipulates that any party who wishes to object to the decision of the taxing officer, should do so within 14 days after the said decision and thereafter file his reference within 14 days from the date of the receipt of the reasons, where the reasons for the taxation on the disputed items in the bill are already contained in the considered ruling, there is no need to seek for further reasons simply because of the unfortunate wording of subrule (2) of rule 11 of the Advocates Remuneration Order demands so. The said rule was not indeed to be ritualistically observed even when reasons for the disputed taxation are already contained in the formal and considered ruling.’’

16. The Applicant contends that the impugned taxation ruling contains a sufficient explanation for the decision by the Taxing Officer. As such, there was no need to lodge the notice of taxation to call for the reasons before filing the reference. Hence the decision to seek leave to file the reference without first seeking leave to file the notice of objection.

17. I have looked at the impugned taxation ruling and it is clear to me that it provides reasons for the decision. For example, the Taxing Master stated that Schedule 6(1) of the Remuneration Order entitled her to award a reasonable amount in instruction fees so long as the amount awarded did not go below Ksh. 25,200. Proceeding on this premise, she awarded Ksh. 300,000.00 which, in her view, was a reasonable amount.

18. The Taxing Master also stated that getting up fees should be one third of the instruction fees awarded. Hence her decision to award Ksh. 100,000 under this head.

19. The Taxing Master also stated that all other items were drawn to scale. Hence her decision to allow them as presented.

20. The Taxing Master further observed that the Applicant had increased disbursements by half which, according to her, was improper. Hence her decision to disallow the increment.

21. Importantly, the rule which requires the lodging of a notice of objection is not couched in mandatory terms. It is discretional in nature since the word ‘’may’’ is used. This fact was affirmed by the Court of Appeal in the case of Joe Mwanthi & Co. Advocates v David Kihono Waweru [2019] KECA 668 (KLR).

22. Having regard to the foregoing, the Respondent’s assertion that the Applicant ought to have sought leave to lodge an objection to the taxation before applying for leave to file a reference is misplaced. As such, the court rejects it.

23. Regarding the merits of the application, the general position in law is that whether or not to grant a request to enlarge time to file a reference out of time is a matter which is left to the discretion of the court. This fact is affirmed by rule 11 of the Advocates (Remuneration) Order. It has further been affirmed by case law (see for instance Kuria v Humphrey & Company LLP [2022] KEHC 16060 (KLR)).

24. The Applicant asserts that the reason why it did not lodge the reference within time was a mistaken belief that the law allows 30 days for filing a reference. The Applicant asserts that this was an honest mistake.

25. In the case of Edward Maina Njanga t/a Maina Njanga & Co. Advocates v National Bank of Kenya Limited [2009] KECA 352 (KLR), the Court of Appeal emphasized that an honest mistake, whether of law or fact, is a good reason for the court to exercise its discretion to enlarge time. The learned Judges of the court quoted with approval the following excerpt on the subject from the case of Murai & Others vs. Wainaina [1978] LLR 2782 (CA): -

“A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by Senior Counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better.”

26. Having regard to the forestated, I find that the Applicant’s explanation for the failure to file the reference within time is reasonable. In the premises, I am minded to exercise my discretion in favour of enlarging the time for lodging the proposed reference.

Determination

27. The upshot is that the application dated 27th October 2025 is hereby allowed with the consequence that: -

a) The time for lodging a reference against the taxation of the Taxing Master in the ruling dated 30th September 2025 is enlarged.

b) The annexed draft reference is deemed as duly filed and served subject to payment of the requisite court fees.

c) Costs of the application shall abide the results of the reference.

Dated, signed and delivered on the 12th day of November, 2026

B. O. M. MANANI

JUDGE

In the presence of:

……………. for the Applicant

……………. for the Respondent

ORDER

In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.

B. O. M MANANI