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ELRCDismissedNotice of Motion dated 3.10.2015 (arising from Industrial Cause No. 116 of 2013)· [2015] KEELRC 225 (KLR)

Kinyua Muyaa & Co. Advocates v Kenya Ports Authority Pension Scheme & 8 Others [2015] KEELRC 225 (KLR)

Industrial Court (Employment and Labour Relations Court)
18 November 2015
OMONESMUS MAKAU
1,697 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court can tax your lawyer's bill for employment cases—you can't skip that process by rushing to a judge.

What this practically means

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Executive summary

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The client (Justus Omae Nuarandi) brought a Notice of Motion dated 3.10.2015 seeking to stay taxation of an advocate/client bill of costs dated 2.7.2015 (Ksh 227,922,220.73 for services in Industrial Cause No. 116 of 2013), to review or set aside the Deputy Registrar's ruling of 18 September 2015 dismissing a preliminary objection on jurisdiction, and to strike out the bill with a direction that it be filed before the DR of the High Court. The client argued that section 12(4) of the ELRCA only covers party-and-party costs and that advocate/client taxation is a preserve of the High Court, relying on Abincha & Co. Advocates v Trident Insurance. The advocate contended the court has jurisdiction over fees for work done before it under Article 162(2) and section 12 of the ELRCA. The court held the motion incompetent: section 16 ELRCA and Rule 32 permit review only of the court's own orders, not those of the DR, and the bill could only reach a judge on appeal after taxation, making the motion premature. On jurisdiction, the court held that it is a superior court of equal status to the High Court, whose DR can tax advocate/client bills arising from disputes before it, by dint of Article 162(2) read with Article 165(5) and section 7(1) of the Sixth Schedule. It declined to follow the Abincha decision and dismissed the motion with costs on 18 November 2015.

Key legal issues

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01

Procedural competence of the motion

Holding

The motion was incompetent because it sought review of the Deputy Registrar's decision, not the court's own order, and was premature as the bill had not been taxed or appealed.

Reasoning

Section 16 of the ELRCA empowers the court to review only its own judgment, awards, orders or decrees, and Rule 32(2) applies to orders made by the court. The DR's ruling of 18.9.2015 dismissing the preliminary objection was not the court's order. Further, the bill filed before the DR could only reach a judge on appeal after taxation. Invoking the court's supervisory powers through this motion was the wrong procedure.

p. 3
02

Jurisdiction over advocate/client bills of costs

Holding

The court and its DR have jurisdiction to tax advocate/client costs arising from disputes under Article 162(2), since jurisdiction over employment disputes was transferred wholesale from the High Court.

Reasoning

The court is a superior court equal in status to the High Court, and its Registrar/DR is equal in status for all purposes including taxation. Section 7(1) of the Sixth Schedule keeps existing laws in force with necessary adaptations, so powers previously exercised by the High Court over such bills devolved to this court. The Constitution did not create a superior court deficient in determining fees for advocates appearing before it.

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Legal principles established

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  • The ELRC and its Deputy Registrar, being of equal status to the High Court, have jurisdiction to tax advocate/client bills of costs arising from proceedings before the court
  • A court should not determine a bill of costs filed before a taxing officer unless referred to it on appeal or through supervisory jurisdiction

Court orders

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  1. 1.The applicant (client)'s Notice of Motion dated 3.10.2015 is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 165(5)
  • Constitution of KenyaSection 7(1), Sixth Schedule
  • Employment and Labour Relations Court Actsection 12(4); section 12(3)(viii); section 16; preamble
  • Industrial Court Act, 2011Order 16
  • Industrial Court (Procedure) Rules 2010Rule 32(1)(b),(c),(d),(e); Rule 32(2)

Cases cited (1)

  • Abincha & Co. Advocates vs Trident Insurance Co Ltd
    H.C Misc 527 of 2011 (2013) eKLR
Jurisdiction invoked
Article 162(2) read with Article 165(5) of the Constitution; section 12 of the Employment and Labour Relations Court Act

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, "Kinyua Muyaa & Co. Advocates v Kenya Ports Authority Pension Scheme & 8 Others [2015] KEELRC 225 (KLR)", Case Analysis (2015). Notice of Motion dated 3.10.2015 (arising from Industrial Cause No. 116 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/225/eng@2015-11-18

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