https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2091

Gakoi Maina & Co Advocates v Leo Designs Ltd (Miscellaneous Application E384 of 2025) [2026] KEELRC 2091 (KLR) (21 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2091 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E384 of 2025 HS Wasilwa, J July 21, 2026 Between Gakoi Maina & Co Advocates Claimant and Leo Designs Limited Respondent Ruling 1.The Respondent/ Applicant filed a Notice of Motion application dated 23rd March 2026 seeking orders: -i.Spentii.That this Honourable Court be pleased to grant the Respondent leave to file its response to the Applicant’s Application for taxation on their Bill of costs dated 19th September 2025.iii.That this Honourable Court be pleased to arrest the ruling scheduled for delivery on 29th April 2026 and any orders issued on 23rd March 2026.iv.That this Honourable Court be pleased to grant the Respondent an opportunity to participate in the taxation proceedings.v.That this Honourable Court to fix a new date for taxation.vi.That the costs of this Application be in the cause. Respondent/Applicant’s Case 2.The Respondent/Applicant avers that it recently instructed the firm of Sonoiya & Company Advocates to come on record and take over conduct of the matter. Upon coming on record, the said Advocates required reasonable time to peruse the court file and familiarize themselves with the proceedings. 3.The Respondent/Applicant further contends that the Advocate handling the matter had previously been out of the country and was thereafter indisposed due to illness for approximately one week, thereby preventing the timely filing of its response to the Applicant’s application for taxation of the Bill of Costs. On 23rd March 2026, the Court fixed the ruling on the said application for 29th April 2026. 4.It is the Respondent/Applicant’s case that it has at all times been desirous of filing its response and participating in the taxation proceedings but was prevented from doing so by circumstances beyond its control. 5.It asserts that the delay was neither deliberate nor inordinate and was not intended to obstruct the course of justice, but was excusable in the circumstances. 6.The Respondent/Applicant further avers that unless leave is granted to file its response and the scheduled ruling is set aside or stayed, it will suffer prejudice by being condemned unheard. 7.It states that it is a fundamental principle of justice that no party should be condemned unheard. 8.It further contends that the Applicant will not suffer any prejudice incapable of being compensated by an award of costs if the orders sought are granted. Consequently, it urges that it is in the interests of justice, fairness and equity that it be afforded an opportunity to be heard on the merits. Applicant’s Case 9.In opposition to the application, the Applicant filed a replying affidavit dated 17th April 2026, sworn by Barbara Wendy Mideva, an Advocate practising as such in the Applicant’s law firm. 10.The Respondent states that the Respondent/Client seeks leave to file its response to the Advocate–Client Bill of Costs dated 19th September 2025, which is scheduled for taxation on 29th April 2026, and further seeks orders arresting the ruling and fixing a fresh date for taxation. 11.It is the Applicant’s case that the Advocate–Client Bill of Costs remains pending before the Taxing Officer for taxation and, consequently, this Court lacks jurisdiction to interfere with the taxation process before it is concluded. 12.The Applicant therefore asserts that the Court has no jurisdiction to grant the orders sought and urges that the application be dismissed with costs. Respondent/Applicant’s Submissions 13.On jurisdiction, the Applicant submitted that the law on enlargement of time is well settled. Section 95 of the Civil Procedure Act, empowers the Court to enlarge time for any act even after the period fixed has expired; further, Order 50 Rule 6, similarly empowers the Court to enlarge time upon such terms as the justice of the case may require notwithstanding that the application is made after expiry. 14.It was submitted that Sections 1A and 1B of the Act enshrine the overriding objective, obligating the Court to facilitate just, expeditious, proportionate and affordable resolution of disputes. Additionally, Article 159(2)(d) of the Constitution commands courts to administer justice without undue regard to procedural technicalities. 15.The Respondent/Applicant argued that these provisions confer unfettered jurisdiction to enlarge time, though exercisable judicially, with the burden falling on the Applicant to justify the exercise of discretion in its favour. It relied on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, where the Supreme Court held: “Extension of time is not a right of a party; it is an equitable remedy exercisable at the discretion of the Court upon sufficient cause being shown…………A party seeking extension of time has the burden of laying basis to the satisfaction of the Court demonstrating:i.A reasonable explanation for the delay;ii.Whether there will be any prejudice suffered by the Respondent if the extension is granted;iii.Whether the application has been brought without undue delay.” 16.On delay, it was submitted that the Respondent/Applicant had candidly explained that the delay arose because new advocates had only recently come on record, counsel required time to familiarise himself with the proceedings, counsel had been out of jurisdiction, and thereafter fell ill. It was argued that emphasis ought to be placed on the reasons for delay rather than its length. It cited Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya [2022] KESC 16 (KLR), and, relying on Belinda Murai & 9 Others vs Amos Wainaina [1979] eKLR, that " Mistake of Counsel should not necessarily be visited upon a litigant where the interests of justice require otherwise.” 17.It is the Respondent/Applicant’s submission that the explanation tendered was rational and plausible, sufficiently discharging the burden to warrant extension of time. 18.On the right to fair hearing, the Respondent/Applicant submitted that the application implicates its right to be heard under Article 50(1), rendered non-derogable by Article 25(c). It cited several cases including Richard Nchapi Leiyagu V Independent Electoral Boundaries Commission & 2 Others [2013] eKLR, where it was held: “The right to a hearing has always been a well-protected right in our constitution and is also the cornerstone of the rule of law.” 19.It was argued that taxation proceedings carry real financial consequences, and it would be unconstitutional to condemn the Respondent/Applicant unheard over a procedural lapse, relying also on Pithon Waweru Maina V Thuka Mugiria [1983] eKLR for the proposition that disputes should be determined on merit rather than procedural default. 20.On prejudice, it was submitted that no prejudice would befall the Applicant/Respondent if the orders sought were granted, as it would retain the opportunity to prosecute its Bill of Costs and respond to any issues raised, with any inconvenience compensable in costs. 21.Conversely, it was submitted that refusal would permanently lock the Respondent/Applicant out of the taxation proceedings, occasioning grave prejudice contrary to Articles 25(c), 48, 50 and 159 of the Constitution. 22.On whether the Application was filed without undue delay, it was submitted that the Respondent/Applicant moved to court promptly upon becoming aware of the impending ruling and the procedural lapse, demonstrating vigilance rather than indolence and satisfying the third limb of the set out governing principles. Applicant/Respondent’s Submissions 23.The Applicant/Respondent submitted that the ruling on the Advocate-Client Bill of Costs is yet to be delivered. 24.Reliance was placed on Lubullellah & Associates Advocates V Nasser Ahmed t/ Airtime Business Solutions [2010] eKLR, which cited with authority Donholm Rahisi Stores (suing as a firm) v East Africa Portland Cement Limited [2005] eKLR, where it was held: “ Taxation of costs, whether those costs be between party and party or between Advocate and client, is a special jurisdiction reserved to the taxing officer by the Advocate (Remuneration) Order. The court will not be drawn into the arena of taxation except by way of reference (from a decision on taxation) made under Rule 11 of the Advocates (Remuneration) Order. The present application is not such reference. The application seeks an order that would have the effect of interfering with the special jurisdiction of the taxing officer, a jurisdiction that the court cannot take upon itself. The taxing officer does nothing beyond taxation of the bill of costs. The consequences of such taxation, for instance recovery of the taxed costs, will be a matter for the court, and the court can at that stage be asked to stay recovery of those costs pending whatever event, say, an appeal against the order granting the costs, or a reference under Rule 11 of the advocates (Remuneration) Order.” 25.Relying on the case, the Applicant/Respondent submitted that the Court lacks jurisdiction to arrest delivery of the Ruling on the Advocate-Client Bill of Costs, as its jurisdiction over taxation matters can only be invoked by way of a reference, which cannot in any event be filed before taxation is complete. 26.It was further submitted that, the present Application not having first been placed before the Taxing Officer, the orders sought cannot be granted for want of jurisdiction. 27.I have examined the averments and submissions of the parties herein. The applicant seeks leave before this court to allow him to file a reply to the taxation pending before the lower court. 28.The application seeks also to arrest the ruling on the said taxation pending before the Deputy Registrar. In this court’s position the application is actually an abuse of the court process. It is imprudent for counsel to seek to arrest a ruling before the lower court without seeking to file the said application before the judicial officer concerned. I find the application not merited and I proceed to strike it. The costs shall be in the application. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF JULY 2026.HELLEN WASILWAJUDGE