Geofrey Muriithi Murage & 2 others v Antony Oluoch t/a A.T. Oluoch & Company Advocates & 2 others [2018] KEELRC 2083 (KLR)
The bottom line
#The Employment Court struck out two suits against advocates over a Kshs.1.8 billion settlement because grievances about a settlement must be raised in the original case, not a new one.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievances over disbursement of settlement monies were matters of satisfaction of the consent orders
Yes; such grievances must be raised in the suits in which the consent orders were recorded, not in fresh suits, so the present suits were misconceived
Section 34 of the Civil Procedure Act vests determination of questions of execution, discharge or satisfaction of a decree in the court executing the decree. The plaintiffs' complaint of extortionate deductions went to satisfaction of the consent orders; bringing it by fresh Originating Summons impaired the court's jurisdiction.
Whether the ELRC lacks jurisdiction over taxation or legal fees
The submission was misconceived; the ELRC may make orders as to costs under section 12(4) of the ELRC Act read with rule 29 of the ELRC (Procedure) Rules, 2016, but where costs were fixed by consent there is no taxing master's decision to reference
The court held that orders on costs it makes are subject to its jurisdiction, and in taxed cases a reference under rule 11(2) of the Advocates (Remuneration) Order lies. But where costs are fixed by consent orders, there is no conceivable reference, so the court has no jurisdiction to investigate the legal costs absent a proper application for review or satisfaction.
Jurisdiction over advocate-client remuneration agreements concluded after the consent orders
Such agreements were made outside the suits and their validity, variation or taxation is a matter for the High Court under section 45(2) of the Advocates Act
The remuneration agreements were not incorporated into the consent orders, so they cannot be revisited by review or satisfaction proceedings. Only if the advocates' fees were to be paid out of the ordered legal costs would the question of satisfaction arise in the concluded suits, with quantum and fairness left to the High Court.
Whether the suits could be used to seek review or setting aside of the consent orders
No; review lies by application in the original suit under rule 33(2) of the ELRC (Procedure) Rules, 2016, and a fresh suit for that purpose is an abuse of court process
Section 16 of the ELRC Act empowers review in accordance with the Rules; rule 33(2) requires the application to be made to the judge who passed the decree. Instituting fresh Originating Summons to attack consent orders for fraud, misrepresentation or want of authority was misconceived and abusive.
Legal principles established
#- All questions arising between parties relating to execution, discharge or satisfaction of a decree shall be determined by the court executing the decree and not by a separate suit (section 34, Civil Procedure Act)
- Review of an order must be sought in the suit in which the order was made, not by way of a fresh suit
- It is an abuse of court process to seek interim orders in an application that, if granted, would determine the main suit
- The ELRC has jurisdiction over costs orders it makes, including matters flowing from taxation; disputes over advocate-client remuneration agreements concluded outside the consent orders fall under section 45(2) of the Advocates Act in the High Court
Court orders
#- 1.The respective suits by Originating Summons filed on 18.04.2016 and the respective applications by Chamber Summons filed on 18.04.2016 are struck out
- 2.Each party shall bear their own costs of the proceedings
- 3.Appropriate applications for review or satisfaction of the consent orders may be filed as per applicable substantive law and rules of procedure not later than 02.06.2018
- On appeal from
- null
- null
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (transferred from the High Court following the ruling of G.L. Nzioka J of 03.02.2017)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geofrey Muriithi Murage & 2 others v Antony Oluoch t/a A.T. Oluoch & Company Advocates & 2 others [2018] KEELRC 2083 (KLR)", Case Analysis (2018). ELRC Cause Nos. 230 and 231 of 2017 (formerly HCCC Nos. 128 and 129 of 2016 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2083/eng@2018-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.