Laikipia County Public Service Board v Public Service Commission & another; Laikipia County Government (Interested Party) (Miscellaneous Application E017 of 2023) [2023] KEELRC 2612 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of the preliminary objection
Only the time-bar ground was a valid preliminary objection; the defective-affidavit ground was not a pure point of law.
Applying Mukisa Biscuits, a preliminary objection must raise a pure point of law on the assumption that all pleaded facts are correct. The time-bar objection meets this test. The complaint that the supporting affidavit was commissioned by an advocate allegedly employed by the applicant's law firm would require adduction of evidence to establish and therefore cannot stand as a preliminary objection.
Defective supporting affidavit (conflict of interest)
Not determined as a preliminary objection because it requires evidence; the court did not pronounce on the merits of the alleged conflict of interest.
Mr. Washika relied on section 4 of the Oaths and Statutory Declarations Act arguing that Mr. Odira, being an employee of the applicant's instructing firm, could not commission the affidavit. Mr. Odira contended he had left the firm and registered his own firm in December 2022, though he sometimes held brief for Mr. Awuor Ramogy. The court found this disputed factual question unsuitable for determination as a preliminary objection.
Whether the reference was time barred
The reference, stamped as received on 31st August 2023 with filing fees paid on 6th September 2023, was outside the 14-day period, was time barred, and the court had no jurisdiction over it.
Paragraph 11(2) of the Advocates (Remuneration) Order allows fourteen days from receipt of reasons to apply by chamber summons. The taxing officer's ruling was delivered on 16th August 2023 with reasons, so the last day for filing was 30th August 2023. The court record bore a receiving stamp for 31st August 2023 and the filing fees receipt was generated on 6th September 2023. Nothing on record showed receipt before the deadline.
Enlargement of time
Refused because the supporting affidavit gave no explanation for the late filing, leaving no basis for the exercise of discretion.
Although the applicant sought enlargement of time as a cautionary prayer, the supporting affidavit of Mr. Charles Kiarie contained no explanation for the delay. Without such an explanation the court could not exercise its discretion to extend time under paragraph 11 of the Advocates (Remuneration) Order.
Legal principles established
#- A reference under paragraph 11 of the Advocates (Remuneration) Order must be filed within fourteen days; a reference filed outside that period is time barred and the court lacks jurisdiction to determine it.
- An objection on limitation is a valid pure point of law for a preliminary objection, whereas an allegation that a supporting affidavit was improperly commissioned requires evidence and is not a valid preliminary objection.
- A reference to a taxation decision arising from a party and party bill of costs ought to be filed in the primary suit rather than a fresh miscellaneous application.
Court orders
#- 1.The preliminary objection is allowed and the chamber summons dated 29th August 2023 is struck out with costs.
- Jurisdiction invoked
- Advocates (Remuneration) Order, paragraph 11(2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laikipia County Public Service Board v Public Service Commission & another; Laikipia County Government (Interested Party) (Miscellaneous Application E017 of 2023) [2023] KEELRC 2612 (KLR)", Case Analysis (2023). Chamber Summons dated 29th August 2023 (Miscellaneous Application, Nyeri ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2612/eng@2023-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.