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ELRCDismissed· [2016] KEELRC 486 (KLR)

Issa John Musungu v Teachers Service Commission [2016] KEELRC 486 (KLR)

Employment and Labour Relations Court
29 September 2016
MOMAUREEN ONYANGO
700 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to order legal costs paid to the Teachers Service Commission because its in-house lawyer hadn't proven a fee-sharing agreement.

What this practically means

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Executive summary

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The Teachers Service Commission, as Respondent, applied under section 6 of the Advocates Act and section 3A of the Civil Procedure Act for an order that its costs taxed at Kshs.159,901 on 24th July 2015 be deemed judgment of the court, with interest from that date, plus costs of the application. The application was supported by an affidavit of Cavin Anyuor, an advocate employed in-house by the Commission, who deponed that the taxed costs remained unpaid and had not been reviewed, varied, appealed or set aside. The Claimant, served through his counsel, did not respond. At the hearing the court noted that the deponent was the Commission's employee and sought clarification on who would receive the costs; counsel confirmed payment would go to the Commission, the employer of the in-house counsel who conducted the case. The court framed the issue as whether it should order payment of costs under the Advocates Remuneration Order to the Teachers Service Commission. Applying Rule 4 of the Advocates (Practice) Rules, which prohibits an advocate from sharing profit costs with a non-advocate, and noting the Rule 4(ii) proviso permitting set-off against salary only where an agreement exists with the employer, the court held that ordering the Claimant to pay fees to the Commission would breach Rules 4, 5 and 6 and amount to awarding costs to an unqualified person, since no such agreement had been demonstrated. The application was accordingly dismissed on 29th September 2016.

Key legal issues

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01

Whether costs should be ordered payable to the Teachers Service Commission as employer of in-house counsel

Holding

The application was dismissed because making such an order would breach the prohibition on sharing profit costs with unqualified persons.

Reasoning

Rule 4 of the Advocates (Practice) Rules prohibits an advocate from sharing profit costs with any person who is not an advocate. The proviso in Rule 4(ii) permits an employed advocate to set off profit costs against salary only where there is an agreement with the employer. Cavin Anyuor, an in-house advocate for the Commission, did not demonstrate such an agreement, so ordering payment to the Commission would award costs to an unqualified person in breach of Rules 4, 5 and 6.

p. 2

Legal principles established

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  • An order for payment of profit costs to an unqualified person employing an in-house advocate, absent a Rule 4(ii) agreement, would contravene the Advocates (Practice) Rules

Court orders

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  1. 1.The application is dismissed

Authorities

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Legislation

  • Advocates Actsection 6
  • Civil Procedure Actsection 3A
  • Advocates (Practice) RulesRules 4, 4A, 5 and 6
  • Advocates Remuneration Ordernot specified
Jurisdiction invoked
Section 6 of the Advocates Act and Section 3A of the Civil Procedure 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, "Issa John Musungu v Teachers Service Commission [2016] KEELRC 486 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/486/eng@2016-09-29

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