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ELRCDismissedELRC Miscellaneous Application No. E128 of 2025· [2026] KEELRC 2752 (KLR)

Slapper Shoes Industries v Joseph Okwayo Ombaisi

Employment and Labour Relations Court of Kenya
30 September 2026
7,914 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to excuse a company's 14-month delay in challenging a taxed legal bill, blaming counsel alone is not enough.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (Ocharo Kebira, J.) determines a Chamber Summons dated 7th November 2025 by Slapper Shoes Industries, the respondent in ELRC Cause No. 633 of 2017, seeking leave to file a reference out of time against a Taxing Officer's decision of 29th August 2024 taxing the claimant's party-and-party bill at Kshs. 225,400/=, together with stay of execution and remission for fresh taxation. The Applicant attributed its fourteen-month delay to lack of knowledge of the taxation and blame of its erstwhile advocates, Kamoti Omollo & Co. The Respondent, a former employee awarded Kshs. 161,120/= for unfair termination in November 2022, demonstrated by uncontroverted affidavits of service and emails that the Applicant's advocates were served with the notice of taxation, the ruling notice, the certificate of costs and execution warnings, and that the Taxing Officer's ruling itself records the Applicant's counsel present at delivery. The Applicant, granted leave to file a further affidavit, filed none. Applying the Salat principles and Rule 11(4) of the Advocates (Remuneration) Order, the Court held the delay inordinate and unexplained, that service on an advocate on record is service on the client, and that blaming counsel without evidence of the mistake or of the litigant's diligence avails nothing. Leave was declined; the ancillary prayers for stay and remission fell with it, interim stays were discharged, and costs were awarded to the Respondent. The Court deliberately refrained from pronouncing on the competency point and on the complaint that the warrants included the already-paid decretal sum.

Key legal issues

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01

Whether the fourteen-month delay in seeking leave to file a reference out of time was satisfactorily explained

Holding

The delay was inordinate and unexplained; the assertion of ignorance of the taxation was rebutted by uncontroverted evidence of service and by the Taxing Officer's record that the Applicant's counsel attended the ruling

Reasoning

The Respondent's replying affidavit, corroborated by affidavits of service, emails and the Taxing Officer's ruling recording 'Mr Omollo present for the Respondent', stood uncontroverted after the Applicant was granted and declined an opportunity to file a further affidavit. The burden under sections 107-109 of the Evidence Act and the Salat principles was not discharged; submissions cannot substitute for evidence.

p. 30
02

Whether the mistake of erstwhile counsel excuses the delay

Holding

The principle that counsel's mistake should not be visited on a litigant is not a talisman; it requires proof of the mistake and of the litigant's own diligence

Reasoning

The Applicant offered no evidence from or correspondence with its erstwhile advocates, and remained silent for over two years on the costs it knew from November 2022 it was liable to pay. Following Habo Agencies, a litigant must follow up its own cause; indolence cannot be excused by bare blame of counsel.

p. 34
03

The consequence of failure to file a further affidavit after leave was granted

Holding

Unanswered averments stand unrebutted and the Court may draw the inference that the party had no answer

Reasoning

Having sought and obtained leave to reply to the replying affidavit that struck at the root of the application, the Applicant filed nothing. The Respondent's depositions, corroborated by contemporaneous documents, were accepted as establishing the facts deposed to, and an inference of want of answer was drawn.

p. 34
04

Whether the complaint about inclusion of the paid decretal sum in the warrants lies within a reference

Holding

A complaint about execution, not taxation, falls outside the scope of a Rule 11 reference; the Court made no pronouncement on it

Reasoning

The reference jurisdiction under Rule 11 is confined to objections to items of taxation. The grievance that the warrants of 26th September 2025 included the decretal sum of Kshs. 161,120/= and interest despite payment on 6th December 2022 is a complaint about execution, on which the Court expressed no view.

p. 36

Legal principles established

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  • Leave to file a reference out of time is a discretionary equitable remedy; the applicant bears the burden of explaining the delay to the Court's satisfaction
  • Service upon an advocate on record is service upon the client, and the advocate's knowledge is the client's knowledge
  • Uncontroverted sworn averments supported by documents must be acted upon unless inherently improbable
  • Blaming counsel avails a litigant only where the mistake is proved and the litigant was diligent; a case belongs to the litigant

Court orders

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  1. 1.The Applicant's Chamber Summons dated 7th November 2025 is dismissed
  2. 2.Leave to file a reference out of time against the Taxing Officer's decision of 29th August 2024 is declined
  3. 3.Prayers for stay of execution and for remission of the bill of costs for fresh taxation are refused
  4. 4.Any interim orders of stay of execution issued are discharged
  5. 5.Costs of the application awarded to the Respondent
Jurisdiction invoked
Rule 11(2) and (4) of the Advocates (Remuneration) Order; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; the Court's status as a superior court of equal status with the High Court under Article 162(2)(a) and (3) of the Constitution

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, "Slapper Shoes Industries v Joseph Okwayo Ombaisi", Case Analysis (2026). ELRC Miscellaneous Application No. E128 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2752/eng@2026-09-30

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