Slapper Shoes Industries v Joseph Okwayo Ombaisi

Elrc Miscellaneous Application No. E128 Of 2025 Industries, the respondent in the primary suit, ELRC Cause No. 633 of 2017, Joseph Okwayo Ombaisi v Slapper Shoes Industries Limited. By it, the Applicant seeks, principally, the leave of this Court to file, out of time, a reference against the decision of the Taxing Officer, Hon. L. K. Sindani, Deputy Registrar, delivered on 29th August 2024, by which the Claimant’s (now the Respondent’s) party and party bill of costs in the primary suit was taxed at Kshs. 225,400/=. Ancillary to that principal prayer, the Applicant seeks a stay of execution and an order remitting the bill for fresh taxation before a different taxing officer. 2. The application is opposed by the Respondent. At its heart lies a single, and in my view decisive, question: whether the Applicant has placed before this Court a satisfactory explanation for its failure to challenge the Taxing Officer’s decision within the time prescribed by law, and for the delay of some fourteen months that followed. B. BACKGROUND 3. The background to the application is, in its essentials, not in dispute, and may be shortly stated. The Respondent, a former employee of the Applicant, sued the Applicant in ELRC Misc. Application No. E128 of 2025 — Ruling | Page 2

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Elrc Miscellaneous Application No. E128 Of 2025 ELRC Cause No. 633 of 2017, alleging unfair termination of his employment. By a Judgment delivered on 10th November 2022, the Court (Nzei, J.) found the termination procedurally unfair Respondent in the and sum entered of judgment Kshs. for the 161,120/= as compensation, subject to statutory deductions, together with costs of the suit and interest at court rates. 4. It is common ground that the Applicant, then acting through the firm of Kamoti Omollo & Co. Advocates, settled the decretal sum, net of PAYE, by a cheque for Kshs. 120,400/= dated 6th December 2022, drawn in favour of the Respondent’s advocates, Sherman Nyongesa & Mutubia Advocates. The costs of the suit, however, remained to be taxed. 5. The Respondent thereafter lodged a party and party bill of costs, subsequently amended by the Amended Bill of Costs dated 15th May 2024. The bill was taxed, in the absence of any response or attendance on the part of the Applicant, and the Taxing Officer’s Ruling was delivered on 29th August 2024, the bill being taxed at Kshs. 225,400/=. A Certificate of Costs dated 10th September 2024 followed. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 3

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Elrc Miscellaneous Application No. E128 Of 2025 6. The costs having remained unpaid, a decree was extracted and, on 26th September 2025, warrants of attachment and sale of movable property were issued for the sum of Kshs. 543,007/=, comprising the decretal amount of Kshs. 161,120/=, interest thereon of Kshs. 64,210/=, the taxed costs of Kshs. 225,400/=, interest on the taxed costs of Kshs. 89,827/=, and further costs and collection fees. On 8th October 2025, Murphy Merchants Auctioneers proclaimed the Applicant’s movable property. Some thirty days later, the Applicant, through its present advocates, Kadima & Company Advocates, filed the application now before me. 7. I observe, in passing, that the Chamber Summons, the certificate of urgency and the supporting affidavit are, curiously, intituled as though they were filed in the High Court of Kenya, at Mombasa and at Nairobi respectively. Nothing, however, turns on this. The application was lodged in, has been assigned a number by, and has at all times been handled by, this Court, and the parties have proceeded before me on that footing. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 4

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Elrc Miscellaneous Application No. E128 Of 2025 C. THE APPLICATION (i) The Orders Sought 8. By the Chamber Summons dated 7th November 2025, the Applicant seeks the following orders, which I reproduce verbatim: “1. THAT this Application be certified urgent and to be heard ex-parte in the first instance. 2. THAT leave be granted to the firm of KADIMA & COMPANY ADVOCATES to come on record for the Applicant after entry of judgment. 3. THAT the Applicant be granted leave to file reference out of time against the decision of the Taxing Officer, Honourable Deputy Registrar, L.K. Sindani dated 29th August, 2024 in ELRC NO. 633 OF 2017 (MSA), JOSEPH OKWAYO OMBIASI V SLAPPER SHOES INDUSTRIES. 4. THAT pending the hearing and determination of this Application, this Honourable Court be pleased to issue stay of execution of the Ruling and/or consequential orders of the Honourable Deputy Registrar, L.K. Sindani dated 29th August, 2024 in ELRC Misc. Application No. E128 of 2025 — Ruling | Page 5

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Elrc Miscellaneous Application No. E128 Of 2025 ELRC NO. 633 OF 2017 (MSA), JOSEPH OKWAYO OMBIASI V SLAPPER SHOES INDUSTRIES. 5. THAT pending the hearing and determination of this Reference, this Honourable Court be pleased to issue stay of execution of the Ruling and/or consequential orders of the Honourable Deputy Registrar, L.K. Sindani dated 29th August, 2024 in ELRC NO. 633 OF 2017 (MSA), JOSEPH OKWAYO OMBIASI V SLAPPER SHOES INDUSTRIES. 6. THAT this Honourable Court be pleased to refer the matter back for taxation by an Independent Taxing Master. 7. THAT this Honourable Court do make such orders as it deems fit and just/convenient to meet the ends of justice. 8. THAT costs of this Application be borne by the Respondent.” (ii) The Legal Provisions Invoked 9. The application is expressed to be brought under Rule 11(2) and (4) of the Advocates (Remuneration) Order (made under the Advocates Act, Cap. 16, Laws of Kenya); ELRC Misc. Application No. E128 of 2025 — Ruling | Page 6

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Elrc Miscellaneous Application No. E128 Of 2025 sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap. 21, Laws of Kenya; Order 43 Rule 6 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya, 2010; and all other enabling provisions of the law. 10. It is right to note, as the Respondent has pointed out, that the Civil Procedure Rules, 2010 contain no Order 43 Rule 6. Order 43 of the Rules deals with appeals from orders, and runs only to Rule 4. The provision governing stay of execution pending appeal is Order 42 Rule 6, and I shall assume that it is that provision which the Applicant intended to invoke. The misdescription is not, in itself, fatal; it is the substance of the jurisdiction invoked, rather than the label attached to it, that matters, and Article 159(2)(d) of the Constitution enjoins the Court to do justice without undue regard to procedural technicalities. (iii) The Grounds of the Application 11. The application is premised on the grounds set out on its face and is supported by the affidavit of Mukesh (Mukuntkumar) Malde, a director of the Applicant, sworn on 7th November 2025. The grounds, as they are discerned ELRC Misc. Application No. E128 of 2025 — Ruling | Page 7

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Elrc Miscellaneous Application No. E128 Of 2025 from the face of the application and the supporting affidavit read together, may be summarised as follows. 12. First, that the Taxing Officer delivered her Ruling in ELRC Cause No. 633 of 2017 on 29th August 2024, but that the Applicant was not aware of the taxation, or of the date on which the ruling was to be delivered, as it was never served, and was never informed by its erstwhile advocates of the same. 13. Second, that the Applicant first became aware of the taxation and the resultant ruling only on 8th October 2025, when it was served with the warrants of attachment and the proclamation of attachment for the sum of Kshs. 543,007/=; and that it is apprehensive of an imminent sale of the proclaimed property, the seven days’ notice in the proclamation having lapsed on 15th October 2025. 14. Third, that the Applicant vehemently objects to the taxed costs of Kshs. 225,400/=, which it characterises as extremely excessive when measured against a decretal sum of Kshs. 161,120/=, and to the interest on taxed costs of Kshs. 89,827/=, awarded, as it contends, for a period of only thirteen months. It is averred that the Taxing Officer ELRC Misc. Application No. E128 of 2025 — Ruling | Page 8

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Elrc Miscellaneous Application No. E128 Of 2025 relied on mistaken principles and consequently failed to exercise her discretion judicially, and that these errors led her to tax the bill excessively. 15. Fourth, that the warrants of attachment were obtained by fraud, misrepresentation and/or non-disclosure of material facts, in that the decretal sum had already been paid on 6th December 2022, some twenty-six days after judgment; and that the Deputy Registrar misdirected herself in issuing warrants that included the already-paid decretal sum of Kshs. 161,120/= and interest thereon of Kshs. 64,210/=. In support of this, the Applicant exhibits, as annexure “MM 4”, its erstwhile advocates’ letter dated 18th November 2022, the cheque dated 6th December 2022, the payment voucher and a bank statement evidencing that payment. 16. Fifth, that the delay in filing the reference was not deliberate but was occasioned by the mistake of the Applicant’s erstwhile counsel, which mistake ought not to be visited upon the innocent Applicant; that the delay is not inordinate, considering that the Applicant only became aware of the ruling on 8th October 2025; that no prejudice will be suffered by the Respondent if the orders are ELRC Misc. Application No. E128 of 2025 — Ruling | Page 9

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Elrc Miscellaneous Application No. E128 Of 2025 granted; and that the interests of justice lean in favour of granting the orders sought. D. THE RESPONSE 17. The application is opposed. The Respondent’s opposition is contained in the replying affidavit of Godfrey Mutubia, an advocate of the High Court of Kenya practising with Sherman Nyongesa & Mutubia Advocates, the Respondent’s advocates on record, sworn on 9th March 2026. The affidavit is detailed, and it is buttressed by documentary annexures. Its thrust is that the Applicant’s central assertion — that it was unaware of the taxation and of the ruling — is simply untrue. The grounds of opposition, as they emerge from that affidavit, are the following. 18. First, that the Respondent filed the Amended Bill of Costs dated 15th May 2024 on 22nd May 2024, and served it, together with a Notice of Taxation, upon the Applicant’s then advocates on record, M/s Kamoti Omollo & Co. Advocates, by email on 23rd May 2024, the matter being slated for taxation on 20th June 2024. The affidavit of service of Rose Juma, advocate, sworn on 20th June 2024, ELRC Misc. Application No. E128 of 2025 — Ruling | Page 10

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Elrc Miscellaneous Application No. E128 Of 2025 together with the notice of taxation and the forwarding email, is exhibited as “GM-1”. 19. Second, that on 20th June 2024, the bill was listed for taxation before the Deputy Registrar; that the Applicant’s advocates failed to attend; and that the bill was taxed and reserved for ruling on 29th August 2024. 20. Third, that on 24th August 2024, the Respondent’s advocates served the Applicant’s advocates, by email to their address, info@kamotiomolloadvocates.com, with a Ruling Notice dated 23rd August 2024, notifying them that the ruling would be delivered on 29th August 2024. The affidavit of service sworn on 26th August 2024, the Ruling Notice and the forwarding email, which expressly invokes Order 5 Rule 22B of the Civil Procedure (Amendment) Rules, 2020 on electronic service, are exhibited as “GM-2”. 21. Fourth, that on 17th September 2024, the Respondent’s advocates forwarded to the Applicant’s advocates, by email, the Certificate of Costs dated 10th September 2024, “for immediate settlement by your client”. The email is exhibited as “GM-3”. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 11

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Elrc Miscellaneous Application No. E128 Of 2025 22. Fifth, that on 22nd March 2025, the Respondent’s advocates wrote to the Applicant’s advocates, referring to the Certificate of Costs for Kshs. 225,400/= and notifying them that execution would be commenced on account of their client’s failure to pay. The letter, exhibited as “GM-4”, was ignored. 23. Sixth, that on 11th June 2025, the Respondent’s advocates forwarded the draft decree to the Applicant’s advocates for approval within three days, by a letter copied to the Deputy Registrar of this Court, and served by email on 13th June 2025. The letter and email are exhibited as “GM-5”. 24. Seventh, that on 26th September 2025, the Respondent’s advocates instructed auctioneers to execute the decree, the warrants being exhibited as “GM-6”. 25. On the strength of the foregoing, the deponent asserts that the Applicant was at all times kept informed of the taxation and of the delivery of the ruling, and that the allegation that it was unaware is not true; that the Applicant, having failed to participate in the taxation, and having failed to object or to file a reference in time, cannot be heard to seek to file a reference more than a year after the delivery ELRC Misc. Application No. E128 of 2025 — Ruling | Page 12

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Elrc Miscellaneous Application No. E128 Of 2025 of the ruling; that the delay of over fourteen months is inordinate and inexcusable, and that the Applicant has totally failed to provide any, or any sufficient, reason for it; that the suit belongs to the parties, and the Applicant’s failure to follow up its matter with its advocates for over fourteen months is clear proof of indolence and want of interest; that the Respondent, whose suit was filed as long ago as 2017, will be extremely prejudiced if the application is allowed; and, finally, that the application is fatally defective, having been filed as a miscellaneous application rather than within the primary suit. E. PROCEDURAL HISTORY 26. The application was canvassed by way of written submissions. On 10th March 2026, upon being served with the replying affidavit, the Applicant, through counsel, sought the leave of this Court to file a further affidavit. The Court granted that leave. I pause to observe that the application for leave was, in my view, a proper and prudent course, in light of the contents of the replying affidavit, which squarely confronted the factual premise upon which the entire application rests. As at the date of this Ruling, ELRC Misc. Application No. E128 of 2025 — Ruling | Page 13

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Elrc Miscellaneous Application No. E128 Of 2025 however, no further affidavit has been filed. I shall return, in due course, to the legal consequence of that omission. F. THE PARTIES’ SUBMISSIONS (i) The Applicant’s Submissions 27. In its written submissions dated 9th March 2026, the Applicant identifies the guiding principles on an application for leave to file a reference out of time as being the length of the delay, the reason for it, the chances of the intended reference succeeding, and the degree of prejudice to the respondent if the application is allowed. It relies on Jomo Kenyatta University of Agriculture and Technology v Joseph Mutuura Mbeera & 3 others [2015] eKLR, and the decision therein cited, Fakir Mohamed v Joseph Mugambi & 2 others, Civil Application No. 332 of 2004 (UR), for the proposition that the discretion is unfettered, and that the period of delay, the reason for it, the possible chances of success, the degree of prejudice, and other such considerations are relevant but not exhaustive factors. 28. On the length of the delay, the Applicant submits that the delay ran from 29th August 2024 to the filing of the application, and that it is neither inordinate ELRC Misc. Application No. E128 of 2025 — Ruling | Page 14 nor

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Elrc Miscellaneous Application No. E128 Of 2025 inexcusable, given the reason advanced. It urges the Court to consider the factors as a whole rather than in isolation, relying on APA Insurance Limited v Michael Kinyanjui Muturi [2016] eKLR for the proposition that where the delay is explained and any prejudice to the respondent can be compensated by costs, leave ought to be granted so as to render substantive justice. 29. On the reason for the delay, the Applicant submits that it has demonstrated, by its affidavit, that the delay was occasioned by its erstwhile advocate. It relies on Edith Gichugu Koine v Stephen Njagi Thoiti [2014] eKLR, on the unfettered nature of the discretion and the duty imposed on the Court by the overriding objective; on Eldoret Steel Mills Company Limited v Anthony Shilewa Kaida [2013] eKLR and the decision therein cited, Muli v Kituku (2004) 1 EA 178, where time was extended notwithstanding that the delay was occasioned by the advocates on record; and on Bamanya v Zaver (2002) 2 EA 325, for the proposition that the mistake, fault or dilatory conduct of counsel should not be visited on the litigant. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 15

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Elrc Miscellaneous Application No. E128 Of 2025 30. On the chances of success, the Applicant submits that the intended reference, as demonstrated by the draft reference said to be annexed, has high chances of success. On prejudice, it submits, relying again on Edith Gichugu Koine (supra) and on Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 22, that the Respondent will suffer no prejudice that cannot be compensated by costs; that the Respondent has not demonstrated that the delay will render the process difficult or inoperative; and that the Applicant, on the other hand, stands to suffer loss, damage, disrepute and embarrassment if it is shut out. In conclusion, the Applicant concedes that a mistake was made in failing to file the reference within the prescribed time, but characterises it as an inadvertent oversight, devoid of any contumelious default, and submits that to decline the application would be to kill a fly with a sledge hammer. (ii) The Respondent’s Submissions 31. In his written submissions dated 25th March 2026, the Respondent identifies three issues for determination: whether the application is properly before the Court; whether the Applicant deserves leave to file a reference out ELRC Misc. Application No. E128 of 2025 — Ruling | Page 16

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Elrc Miscellaneous Application No. E128 Of 2025 of time; and whether the Applicant has met the threshold for a stay of execution. 32. On the first issue, the Respondent submits that the application, having been filed as a miscellaneous application rather than in the primary suit, ELRC Cause No. 633 of 2017, is fatally defective and ought to be struck out. The Respondent further complains that no notice of change of advocates, or notice of appointment, has been served upon it by the Applicant’s present advocates. 33. On the second issue, the Respondent sets out Rule 11(1) and (2) of the Advocates (Remuneration) Order and the procedure it contemplates: a notice of objection to the taxing officer within fourteen days of the decision; the taxing officer’s reasons; and, within fourteen days of receipt of those reasons, a reference to a judge by chamber summons. It is submitted that leave to file out of time is a matter of discretion and not an entitlement, and that a party seeking it is obligated to explain the delay to the Court’s satisfaction; that the delay of over fourteen months is inordinate and inexcusable and has not been explained; ELRC Misc. Application No. E128 of 2025 — Ruling | Page 17

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Elrc Miscellaneous Application No. E128 Of 2025 and that the Applicant’s failure to follow up its case with its advocates for that period is clear proof of indolence. 34. On the third issue, the Respondent submits that the Applicant has not satisfied the conditions for stay under Order 42 Rule 6 of the Civil Procedure Rules. Relying on Juliah Wambui Ngaruyia (suing as the Administrator of the Estate of Samuel Mbugua Mungai) v Kassam Hauliers Limited [2020] eKLR, the Respondent submits that it is not sufficient to state merely that the sum is large and that the Applicant will suffer loss if it pays; the Applicant must demonstrate substantial loss, which it has not done. It is further submitted that the application for stay was not brought without unreasonable delay, having been filed more than fourteen months after the ruling; that the Applicant’s former counsel was, as the Taxing Officer’s ruling itself records, present in court on 29th August 2024 when the ruling was delivered; and that no security has been offered. The Respondent urges the Court to dismiss the application, with costs. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 18

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Elrc Miscellaneous Application No. E128 Of 2025 G. ISSUES FOR DETERMINATION 35. I have carefully considered the application, the supporting affidavit and its annexures, the replying affidavit and its annexures, and the written submissions and authorities of both parties. The issues that fall for determination are, in my view, the following: (a) Whether the Applicant has made out a case for the enlargement of time within which to challenge the decision of the Taxing Officer delivered on 29th August 2024; (b) The fate of the remaining prayers of the application; and (c) Who should bear the costs of the application. H. ANALYSIS AND DETERMINATION (i) The Statutory Premise 36. It is appropriate to begin with the statutory framework within which a party aggrieved by the decision of a taxing officer may seek to challenge it, for it is only against that framework that the Applicant’s default, and the nature of the indulgence it now seeks, can be properly measured. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 19

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Elrc Miscellaneous Application No. E128 Of 2025 Rule 11 of the Advocates (Remuneration) Order provides as follows: “(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 subparagraph (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) for the taking of any step; ELRC Misc. Application No. E128 of 2025 — Ruling | Page 20

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Elrc Miscellaneous Application No. E128 Of 2025 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.” 37. The scheme of Rule 11 is plain. A party dissatisfied with a taxing officer’s decision must take the first step — a written notice of objection to the taxing officer, identifying the items objected to — within fourteen days of the decision. It is only upon receipt of the taxing officer’s reasons that the second step, the reference to a judge, becomes available, and that step too must be taken within fourteen days. The timelines are not decorative. They are set short deliberately, because taxation is an incidental process, subsidiary to the determination of the substantive dispute, and the law contemplates that a party’s entitlement to costs, once taxed, will be settled with reasonable despatch, and not left in suspense indefinitely. 38. Rule 11(4) confers upon the Court a power to enlarge the time fixed for the taking of either step, and expressly ELRC Misc. Application No. E128 of 2025 — Ruling | Page 21

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Elrc Miscellaneous Application No. E128 Of 2025 contemplates that the application for enlargement may be made even after the time sought to be enlarged has expired. That power, though expressed by reference to the High Court, is exercisable by this Court in respect of taxation arising in proceedings within its jurisdiction, this Court being a superior court of equal status with the High Court under Article 162(2)(a) and (3) of the Constitution. In the present case, the Applicant took neither step. No notice of objection was ever given to the Taxing Officer under Rule 11(1). The fourteen days prescribed by that sub-rule lapsed on or about 12th September 2024. The present application was filed on 7th November 2025 — some fourteen months after the decision, and some thirteen months and more after the time for objection had expired. It is the enlargement of that time that the Applicant seeks under prayer 3. (ii) The Nature of the Discretion 39. The power conferred by Rule 11(4) is, in terms, a discretionary one: the Court “shall have power in its discretion” to enlarge time. It follows that the grant or refusal of the leave sought is not a matter of entitlement on ELRC Misc. Application No. E128 of 2025 — Ruling | Page 22

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Elrc Miscellaneous Application No. E128 Of 2025 the part of the Applicant. It lies within the discretion of the Court. That discretion is, however, a judicial discretion. It must be exercised judiciously, upon a proper consideration of the material placed before the Court and upon settled principle, and not whimsically, capriciously, or on the basis of sympathy alone. A discretion exercised otherwise would cease to be a judicial discretion at all, and would become an arbitrary one. 40. Over time, the courts have distilled the factors that guide the exercise of the discretion to enlarge time. The locus classicus is the decision of the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (4 July 2014). The Supreme Court observed (at paragraph 77) that the discretion to extend time “should be exercised with abundant caution, care and fairness; it should be used judiciously and not whimsically”, and went on (at paragraph 85) to set out the following as the underlying principles that a court should consider in exercising the discretion: ELRC Misc. Application No. E128 of 2025 — Ruling | Page 23

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Elrc Miscellaneous Application No. E128 Of 2025 “1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court; 3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; 5. Whether there will be any prejudice suffered by the respondents if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” ELRC Misc. Application No. E128 of 2025 — Ruling | Page 24

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Elrc Miscellaneous Application No. E128 Of 2025 41. These principles have been applied by this Court in the specific context of an application under Rule 11(4) for leave to file a reference out of time. In Jiangxi Transportation Engineering Group Ltd v Karweru & Co. Advocates (Miscellaneous Application E011 of 2022) [2024] KEELRC 1873 (KLR) (19 July 2024), Makau, J., adopting the Salat principles, declined to enlarge time where the delay was found to be unreasonable, emphasising that extension of time is an equitable remedy available only to a deserving party who explains the delay to the satisfaction of the Court. 42. Two further observations must be made. First, the factors so identified are not a closed list. The Supreme Court itself framed the inquiry as one to be conducted on a case to case basis, and the Court of Appeal in Fakir Mohamed v Joseph Mugambi & 2 others (supra), cited by the Applicant, described the relevant considerations as “relevant but not exhausted factors”. The Court is therefore at liberty to take into account any matter that bears legitimately on where the justice of the particular case lies, including, for instance, the conduct of the parties, the importance of compliance with time limits, the principle of finality in ELRC Misc. Application No. E128 of 2025 — Ruling | Page 25

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Elrc Miscellaneous Application No. E128 Of 2025 litigation, and the overriding objective under sections 1A and 1B of the correspondingly, Civil the Procedure factors are Act. Secondly, not to be and applied mechanically or in isolation. They are to be weighed together. But among them, the explanation for the delay occupies a central place, for it is the explanation that supplies the foundation upon which the Court’s indulgence is sought. An applicant who offers no credible explanation leaves the Court with nothing upon which to exercise its discretion in his favour. (iii) The Delay Must Be Explained 43. It is a settled principle that any delay, however short, must be explained, and that the explanation must be one that satisfies the Court. There is no fixed yardstick by which a delay is to be pronounced inordinate. A delay of a few days may, in one set of circumstances, be inexcusable; a delay of several months may, in another, be satisfactorily accounted for. Whether a delay is inordinate, so as to disentitle an applicant to the Court’s indulgence, depends wholly on the circumstances of each case — on the length of the delay measured against the period prescribed, on ELRC Misc. Application No. E128 of 2025 — Ruling | Page 26

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Elrc Miscellaneous Application No. E128 Of 2025 the cogency and credibility of the reasons offered for it, and on the conduct of the applicant throughout. 44. In the present case, the period prescribed for the first step was fourteen days. The Applicant allowed some fourteen months to pass. Measured against the period that the law allows, that delay is, on its face, substantial. The question, then, is whether the reason offered for it withstands scrutiny. (iv) The Reason Offered: Want of Knowledge of the Taxation and the Ruling 45. The Applicant’s prime, and indeed only, reason for its failure to challenge the taxation in time is that it had no knowledge of the taxation or of the ruling. It says that it was never served and was never informed by its erstwhile advocates, and that it learnt of the taxation for the first time on 8th October 2025, upon being served with the proclamation. That is the premise upon which the entire application stands. If it holds, the delay up to 8th October 2025 would, in large measure, be explained. If it does not, the application is left without foundation. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 27

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Elrc Miscellaneous Application No. E128 Of 2025 46. The Respondent, by a detailed replying affidavit, has squarely controverted that premise, and has annexed documents which, unchallenged, would satisfy any reasonable mind that the Applicant was, throughout, kept abreast of every stage of the process. The documentary record discloses the following sequence, in which the Applicant, through its advocates then on record, was notified at each step: (a) On 23rd May 2024, the Notice of Taxation, together with the bill of costs and the amended bill, was served by email upon M/s Kamoti Omollo & Co. Advocates, then on record for the Applicant, informing them that the bill would be taxed on 20th June 2024 (annexure “GM-1”). The Taxing Officer’s ruling itself records that the bill was not opposed, the Applicant having filed no response “despite service”. (b) On 24th August 2024, a Ruling Notice dated 23rd August 2024 was served by email upon the same advocates, notifying them that the ruling would be delivered on 29th August 2024 (annexure “GM-2”). ELRC Misc. Application No. E128 of 2025 — Ruling | Page 28

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Elrc Miscellaneous Application No. E128 Of 2025 (c) On 29th August 2024, the ruling was delivered. Most tellingly, the Taxing Officer’s ruling — which the Applicant itself exhibits as annexure “MM 2” to its own supporting affidavit — records, on its face, that it was delivered in the presence of “Mr Omollo present for the Respondent”, that is to say, counsel for the present Applicant. The Applicant’s advocates were therefore not only served with notice of the ruling; they attended its delivery. (d) On 17th September 2024, the Certificate of Costs dated 10th September 2024 was forwarded to the Applicant’s advocates by email, for immediate settlement by their client (annexure “GM-3”). (e) On 22nd March 2025, the Respondent’s advocates wrote to the Applicant’s advocates, expressly referring to the Certificate of Costs for Kshs. 225,400/= and giving notice that execution would commence on account of their client’s failure to pay (annexure “GM4”). (f) On 11th June 2025, the draft decree was forwarded to the Applicant’s advocates for approval, by a letter ELRC Misc. Application No. E128 of 2025 — Ruling | Page 29

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Elrc Miscellaneous Application No. E128 Of 2025 copied to the Deputy Registrar of this Court and served by email on 13th June 2025 (annexure “GM-5”). 47. That is not the record of a party kept in the dark. It is the record of a party, acting through advocates duly on record, who was notified of the taxation, notified of the date of the ruling, , served with the certificate of costs, warned of impending execution, and invited to approve the decree — over a period spanning more than a year before the proclamation of 8th October 2025. Service upon an advocate on record is, in law, service upon the party he represents, and knowledge acquired by the advocate in the course of the retainer is, for these purposes, the knowledge of the client. It was not suggested that Kamoti Omollo & Co. Advocates had ceased to act for the Applicant at any material time. 48. There is more. The Applicant’s own annexure “MM 4” includes a letter dated 18th November 2022 from Kamoti Omollo & Co. Advocates, addressed to the Applicant itself, reporting on the Judgment and expressly informing the Applicant that “the Claimant was also awarded costs of the suit and interest at court rates.” The Applicant acted on ELRC Misc. Application No. E128 of 2025 — Ruling | Page 30

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Elrc Miscellaneous Application No. E128 Of 2025 that letter, settling the decretal sum by a cheque drawn in favour of the Respondent’s advocates within weeks. The Applicant thus knew, from November 2022, that it was liable for the Respondent’s costs, that those costs had yet to be quantified, and who the Respondent’s advocates were. Yet the supporting affidavit is entirely silent as to any step taken by the Applicant, over the following two years and more, to inquire of its own advocates, or of the Respondent’s, as to the status of those costs. 49. The supporting affidavit is equally silent on matters that one would have expected an applicant genuinely kept in ignorance to communicated address: when with erstwhile its the Applicant last advocates; what instructions, if any, it gave them on the question of costs; whether, upon learning of the taxation, it demanded an explanation from them; and what explanation they gave. There is no affidavit from the erstwhile advocates, and no correspondence with them. The assertion that the Applicant was not informed stands as a bare assertion, unsupported by a single document. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 31

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Elrc Miscellaneous Application No. E128 Of 2025 (v) The Effect of the Applicant’s Failure to File a Further Affidavit 50. Confronted with the replying affidavit, the Applicant, on 10th March 2026, sought and obtained the leave of this Court to file a further affidavit. That, as I have said, was a proper course, for the replying affidavit struck at the very root of the application, and the Applicant was entitled to an opportunity to answer it. The Applicant, having sought and been granted that opportunity, did not take it. No further affidavit has been filed. 51. The legal effect of that omission is significant. Where a party’s factual averments, deposed to on oath and supported by documents, are not controverted by the opposite party despite an opportunity to do so, those averments stand unrebutted, and the Court is entitled — indeed bound — to act on them, unless they are inherently improbable or contradicted by other material on the record. The Respondent’s corroborated by depositions are affidavits of neither. They service are sworn contemporaneously in 2024, by emails bearing dates, addresses and subjects, by correspondence ELRC Misc. Application No. E128 of 2025 — Ruling | Page 32 on the

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Elrc Miscellaneous Application No. E128 Of 2025 Respondent’s advocates’ letterhead, and, crucially, by the Taxing Officer’s ruling produced by the Applicant itself. The effect of the Applicant’s default, therefore, is that the depositions in the replying affidavit, and the documents annexed to it, stand uncontroverted, and I accept them as establishing the facts they depose to. 52. It must follow that the Applicant’s assertion that it was unaware of the taxation and of the ruling cannot stand against that uncontroverted evidence. The legal burden of laying a basis for the exercise of the Court’s discretion lies on the Applicant, as the Salat decision makes clear, and as sections 107 to 109 of the Evidence Act, Cap. 80, require of a party who asks the Court to act on the existence of particular facts. Having elected not to answer the evidence adduced against it, the Applicant has failed to discharge that burden. Nor can the deficiency be cured by submissions. It is trite that submissions, however forceful, are not evidence and cannot take the place of evidence: Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR. In any event, the Applicant’s written submissions do not engage with the replying affidavit at all. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 33

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Elrc Miscellaneous Application No. E128 Of 2025 They proceed as though the replying affidavit had never been filed. 53. Further still, a party who seeks leave to answer an opposing affidavit, and then abandons that course without explanation, invites the reasonable inference that it had no answer to give. I draw that inference here. (vi) The Blame Laid at the Door of Erstwhile Counsel 54. The Applicant urges, in the alternative, that the delay was occasioned by the mistake of its erstwhile counsel, and that such mistake ought not to be visited upon it, relying on Bamanya v Zaver (supra), Muli v Kituku (supra) and like authorities. I accept the general proposition that the mistake of counsel may, in appropriate cases, be excused, and that a litigant should not, as a matter of course, be driven from the seat of justice by the default of his advocate. But the principle is not a talisman. It avails only where the mistake is shown, by evidence, to have been made, where its nature is explained, and where the litigant is shown to have been diligent in the pursuit of its own cause. As the Court of Appeal observed in Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR, “it is not ELRC Misc. Application No. E128 of 2025 — Ruling | Page 34

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Elrc Miscellaneous Application No. E128 Of 2025 enough for a party in litigation to simply blame the Advocate on record for all manner of transgressions in the conduct of litigation.” A case belongs to the litigant, not to his advocate, and the litigant bears a corresponding duty to follow up its own matter. (vii) Whether the Delay Was Inordinate 55 . It follows from all the foregoing that the Applicant has not offered any credible explanation for the delay between 29th August 2024 and 8th October 2025. That period, being more than thirteen months measured against a prescribed period of fourteen days, and being wholly unexplained, is in my judgment inordinate in the circumstances of this case. 56. Even if one were to accept, which I do not, that the Applicant first became aware of the taxation on 8th October 2025, a further period of thirty days elapsed before the application was filed on 7th November 2025, notwithstanding that the Applicant was, on its own case, then facing an imminent sale of its property. That period, too, is left unexplained. It reinforces, rather than dispels, the conclusion that the Applicant did not approach the ELRC Misc. Application No. E128 of 2025 — Ruling | Page 35

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Elrc Miscellaneous Application No. E128 Of 2025 Court with the promptitude that the law expects of a party seeking its indulgence. 57. Having found that the delay is inordinate and unexplained, I do not consider it necessary, or indeed appropriate, to venture into a detailed evaluation of the merits of the intended reference. The possible chances of success are, on the authorities, a factor that may be considered; they are not a substitute for an explanation of the delay, and they cannot, of themselves, redeem an application in which no satisfactory explanation has been offered. I note, moreover, that I have been unable to locate, among the documents annexed to the application, the draft reference to which the Applicant’s submissions allude. I would add only this. A significant part of the Applicant’s grievance — namely, that the warrants of 26th September 2025 include the decretal sum of Kshs. 161,120/=, and interest thereon of Kshs. 64,210/=, notwithstanding the payment made on 6th December 2022 — is not a complaint about the taxation at all. It is a complaint about the execution. It does not lie within the scope of a reference under Rule 11 of the Advocates (Remuneration) Order, which is confined to ELRC Misc. Application No. E128 of 2025 — Ruling | Page 36

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Elrc Miscellaneous Application No. E128 Of 2025 objections to items of taxation, and nothing in this Ruling is to be taken as a pronouncement on it. 58. As to prejudice, the Respondent is a former employee whose claim was filed in 2017, and whose entitlement to costs was pronounced in November 2022. The costs were taxed in August 2024 without opposition. To reopen that taxation now, at the instance of a party who stood by for more than a year with full notice of every step, would be to deny the Respondent the finality to which a successful litigant is entitled, and to reward indolence. The overriding objective, which the Applicant invokes, is concerned with the just, expeditious, proportionate and affordable resolution of disputes. It does not operate in favour of one party only, and it is not served by indulging a party who has shown no diligence in the pursuit of its own cause at the expense of one who has. 60. Weighing all these considerations together, I am not persuaded that the Applicant is a deserving party for the purposes of the equitable, discretionary relief it seeks. The leave sought under prayer 3 must be declined. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 37

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Elrc Miscellaneous Application No. E128 Of 2025 (viii) The Remaining Prayers 61. The conclusion I have reached on prayer 3 is dispositive of the application as a whole, for the remaining prayers are ancillary to, and wholly dependent upon, that principal prayer. 62. Prayer 4 sought a stay of execution pending the hearing and determination of the application. The application having now been heard and determined, that prayer is spent. Prayer 5 sought a stay of execution pending the hearing and determination of the intended reference. There being, by reason of the refusal of leave, no reference to be heard, there is nothing to which a stay could attach; a stay pending a reference that cannot be filed would be a stay in a vacuum. It is therefore unnecessary for me to examine whether the conditions under Order 42 Rule 6 of the Civil Procedure Rules have been met, though I observe that nothing in the material placed before me would, in any event, have established the substantial loss that the rule requires, or that the application was made without unreasonable delay. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 38

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Elrc Miscellaneous Application No. E128 Of 2025 63. Prayer 6, seeking that the bill be remitted for taxation before a different taxing officer, is relief of a kind that could only issue upon a reference being entertained and successfully prosecuted. With leave to file the reference declined, that prayer falls with it. 64. Finally, in view of the conclusion I have reached on the merits of the application, I find it unnecessary to determine the Respondent’s contention that the application is incompetent for having been filed as a miscellaneous application rather than within the primary suit. (ix) Conclusion 66. The Applicant has not laid a basis for the exercise of this Court’s discretion in its favour. The leave sought is accordingly denied, and the remaining limbs of the application, being dependent upon it, fail in consequence. (x) Costs 67. Costs follow the event, and I see no reason to depart from that general rule. The costs of this application shall be borne by the Applicant and paid to the Respondent. ELRC Misc. Application No. E128 of 2025 — Ruling | Page 39

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Elrc Miscellaneous Application No. E128 Of 2025 I. DISPOSITION 68. For the reasons set out above, I make the following orders: (a) The Applicant’s Chamber Summons dated 7th November 2025 lacks merit and is hereby dismissed. (b) For the avoidance of doubt, the prayer for leave to file a reference out of time against the decision of the Taxing Officer delivered on 29th August 2024 in ELRC Cause No. 633 of 2017 is declined, and the prayers for stay of execution and for the remission of the bill of costs for fresh taxation are, consequently, refused. (c) Any interim orders of stay of execution issued in this matter are hereby discharged. (d) The costs of this application are awarded to the Respondent. 69. It is so ordered. READ, DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 30TH DAY OF SEPTEMBER 2026. …………………………………………… ELRC Misc. Application No. E128 of 2025 — Ruling | Page 40

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Elrc Miscellaneous Application No. E128 Of 2025 OCHARO KEBIRA JUDGE ELRC Misc. Application No. E128 of 2025 — Ruling | Page 41

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