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ELRCDismissedKisumu ELRC Misc. Application (Chamber Summons dated 30th May, 2025)· [2025] KEELRC 2244 (KLR)

Migori County Government & another v Tom Ojienda & Associates (Miscellaneous Case E049 of 2025) [2025] KEELRC 2244 (KLR)

Employment and Labour Relations Court
29 July 2025
JGJACOB GAKERI
2,057 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisumu Employment Court refused to extend time for a taxation reference because the applicant could not properly explain its delay, so a Kshs. 1.65 million taxed bill now stands.

What this practically means

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Executive summary

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The Applicant, through a Chamber Summons dated 30th May, 2025, sought leave to file a taxation reference out of time against the Taxing Officer's ruling of 13th May, 2025 delivered in Kisumu ELRC Misc. No. E016 of 2025, contesting items of a bill of costs of Kshs.1,652,306.00, together with a stay of execution of that ruling. The delay was attributed to advocate-client communication delays and a power blackout in Migori on 27th May, 2025, said to have prevented filing on the last day. The respondent, Professor Tom Ojienda SC, opposed the application, contending that counsel had eight days after receiving instructions on 19th May, 2025 with no explanation for the inaction, that the blackout notice showed the outage was on 28th May, 2025 and had been publicly notified, and that the applicant had not demonstrated sufficient cause for the delay. The sole issue was whether the application was merited. Applying the Supreme Court's principles in the Salat case, the court found the application was made without undue delay, but the delay was not satisfactorily explained: a week was spent on advocate-client communication, no explanation was offered for the eight days of inaction after instructions, and the blackout occurred on 28th May, 2025, after the 14-day period lapsed. The respondent was also likely to suffer prejudice, having already filed an application for entry of judgment. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the applicant satisfactorily explained the delay in filing the taxation reference within 14 days under paragraph 11 of the Advocates Remuneration Order

Holding

The delay was not satisfactorily explained: a week was consumed in advocate-client communication, no explanation was given for the 8-day inaction after instructions were received, and the power outage occurred on 28th May, 2025, not 27th May as alleged, and had been publicly notified.

Reasoning

The court applied the Salat principles for extension of time. It found the application was made without undue delay, but the explanation for the delay was inadequate. Counsel received instructions on 19th May, 2025 but did nothing until 27th May, 2025. The power outage notice showed the blackout was on 28th May, 2025, after the 14-day period lapsed, and had been publicly notified. Prejudice to the respondent was likely as he had already filed an application for entry of judgment.

p. 5

Legal principles established

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  • Extension of time is a discretionary equitable remedy available only to a deserving party who satisfactorily explains the delay
  • Whether a delay is inordinate depends on the circumstances of each case; no general rule applies
  • Filing an objection under Rule 11(1) of the Advocates Remuneration Order restarts the 14-day period for filing a reference

Court orders

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  1. 1.The application for enlargement of time is dismissed with no orders as to costs

Authorities

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Legislation

  • Advocates Remuneration Order, 2014Paragraph 11(1) and (2)
  • Government Proceedings ActSection 21
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48
  • Civil Procedure ActSection 1B

Cases cited (11)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • County Executive of Kisumu v County Government of Kisumu
  • Great Rift Express Shuttle Ltd & another v Onjete
    [2024] eKLR
  • Moses Mwangi Kimani v Shammi Kanjira Parambil Thomas & 2 Others
    [2014] eKLR
  • Benard Gichohi Njira v Kanini Njira Kathendu
    [2015] eKLR
  • Ahmed Nassir v National Bank of Kenya
    [2006] EA
  • Mombasa County Government v Kenya Ferry Services & Another
    [2019] eKLR
  • Mohammed Ahmed Abdalla & 6 Others v National Environment Management Authority & Another
    [2024] KEELC 7190 (KLR)
  • Jaber Mohsen Ali & Another v Priscillah Boit & Another
    [2014] eKLR
  • Christopher Kendagor v Christopher Kipkorir
    Eldoret E & L 919 of 2012
  • Republic v Permanent Secretary Ministry of State for Provincial Administration and Internal Security
    [2012] eKLR
Jurisdiction invoked
Paragraph 11 of the Advocates Remuneration Order, 2014 (inherent discretion to enlarge time)

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, "Migori County Government & another v Tom Ojienda & Associates (Miscellaneous Case E049 of 2025) [2025] KEELRC 2244 (KLR)", Case Analysis (2025). Kisumu ELRC Misc. Application (Chamber Summons dated 30th May, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2244/eng@2025-07-29

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