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Court of AppealPartially AllowedCivil Appeal 131 of 2017· [2022] KECA 851 (KLR)

Teachers Service Commission v Musungu

Court of Appeal
28 April 2022
WKW KaranjaPKPO KiageFTF Tuiyott
1,174 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that taxed party-and-party costs can only be enforced through execution under the Civil Procedure Rules, not by asking a court to deem them a judgment.

What this practically means

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Executive summary

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TSC obtained taxed party and party costs of Kshs 159,901 against Musungu after the dismissal of his employment suit. When the costs went unpaid, TSC moved the ELRC, invoking section 6 of the Advocates Act and section 3A of the Civil Procedure Act, for an order that the taxed costs be deemed a judgment of the court. The application was unopposed, but Maureen Onyango J dismissed it suo motu, reasoning that ordering the claimant to pay fees to TSC would breach rules 4, 5 and 6 of the Advocates (Practice) Rules. TSC appealed on three grounds, including want of jurisdiction and reliefs not pleaded. The Court of Appeal found the appeal raised issues of law only and that the respondent, though served, filed no submissions and did not attend. The Court held that the motion was fundamentally misconceived: section 6 of the Advocates Act had been repealed by Act No 12 of 1995 and never concerned enforcement of costs; section 51(2) of the Advocates Act provides a summary judgment procedure only for an advocate claiming costs from his own client where the retainer is undisputed; and under both section 13 of the ELRC Act and rule 31 of the former Industrial Court (Procedure) Rules 2010, enforcement of party and party costs lies through execution under the Civil Procedure Act and Rules. The procedure TSC adopted was unknown in law. The proper response was a striking out order, not a merits dismissal. The Court set aside the dismissal of September 29, 2016, substituted an order striking out the application of April 28, 2016, and ordered each party to bear its own costs of the appeal. Having so concluded, it found it unnecessary to consider the other grounds raised.

Key legal issues

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01

Whether TSC's application to have taxed party and party costs deemed a judgment had any legal foundation

Holding

It had none: the invoked section 6 of the Advocates Act was repealed in 1995 and never concerned enforcement of costs; section 51(2) applies only to advocate-client costs; the correct route was execution under the Civil Procedure Act and Rules.

Reasoning

Section 6 of the Advocates Act was repealed by Act No 12 of 1995 and even before repeal dealt with the Council of Legal Education, not costs. Section 51(2) of the Advocates Act serves advocates suing their own clients where retainer is undisputed. Section 13 of the ELRC Act and Rule 31 of the Industrial Court (Procedure) Rules 2010 both direct enforcement through the Civil Procedure Act and Rules. The procedure adopted was unknown in law.

p. 3
02

What disposition should replace the trial court's suo motu dismissal

Holding

The proper response to the incompetent application was striking out, not a dismissal on merit; the Court of Appeal set aside the dismissal and substituted an order striking out the application.

Reasoning

Because the application was founded on a repealed provision and an unknown procedure, the question before the trial judge was not one of merit. The Court therefore found the answer should have been a striking out order rather than dismissal, and substituted that outcome, with each party bearing its own costs.

p. 3

Legal principles established

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  • Section 51(2) of the Advocates Act summary judgment procedure is available only to an advocate seeking costs from his own client, not for enforcement of party and party costs.
  • Enforcement of party and party costs certificates, whether under the ELRC Act or the former Industrial Court Procedure Rules, lies through execution under the Civil Procedure Act and Rules, not through an application to deem the certificate a judgment.

Court orders

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  1. 1.Set aside the dismissal order of September 29, 2016
  2. 2.Substitute the dismissal with an order striking out the application dated April 28, 2016
  3. 3.Each party to bear its own costs of this appeal

Authorities

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Legislation

  • Advocates Actsection 6
  • Advocates Actsection 51(2)
  • Advocates (Practice) Rulesrules 4, 5 and 6; rule 4(ii)
  • Civil Procedure Actsection 3A; Part III
  • Employment and Labour Relations Court Actsection 13
  • Statute Law (Miscellaneous Amendments) Act, 2014Act No. 18 of 2014
  • The Industrial Court (Procedure) Rules, 2010rule 31
  • Civil Procedure Rulesprovisions on execution of decrees and orders
On appeal from
Employment and Labour Relations Court at Kisumu
Cause No. 58 of 2014 (Ruling dated 29th September 2016)
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate framework; appeal on issues of law only

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, "Teachers Service Commission v Musungu", Case Analysis (2022). Civil Appeal 131 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/851/eng@2022-04-28

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