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ELRCPartially AllowedApplication dated 15th October 2018 (Reference under Rule 11 of the Advocates (Remuneration) Order 1962)· [2019] KEELRC 1193 (KLR)

Fredrick Jacob Ochieng Obura & 7 others v Kisumu Municipal Council & another [2019] KEELRC 1193 (KLR)

Employment and Labour Relations Court
9 July 2019
865 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 set aside a Kshs 1 million costs award because the taxing officer skipped most items, confirming that 14 days run from receiving reasons, not the ruling date.

What this practically means

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Executive summary

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The applicant, through the Managing Director of the 2nd respondent, filed an application dated 15th October 2018 under Rule 11(1) and (2) of the Advocates (Remuneration) Order 1962, aggrieved by a taxing master's decision of 31st August 2018 taxing a bill of costs at Kshs. 1,000,225. The applicant contended that the taxing officer failed to tax contested items 4 to 286 of the bill dated 13th March 2018 without sound reasons, employed a mathematical approach rather than considering each contested item, and applied the wrong principle in taxing item 1 (awarding getting-up fees of Kshs. 42,000 against a claimed Kshs. 98,857 basis), producing an unjustly high award. The 1st claimant, Fredrick Jacob Obura, opposed the reference, arguing it was filed out of time under Rule 11(2) and should be dismissed. The court held that although the letter of objection dated 10th September 2018 was lodged more than 14 days after taxation on 31st August 2018, the application itself was filed on 15th October 2018, within 14 days of the registrar's communication of reasons on 1st October 2018, and was therefore competent. On the merits, the court found the taxing officer had failed to tax contested items 4 to 286 and had applied wrong principles to item 1. It set aside the taxation and ruling of 31st August 2018, remitted the bill for fresh taxation, and directed that the costs of the application be taken into account in the subsequent taxation.

Key legal issues

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01

Timeliness of the reference under Rule 11(1) and (2)

Holding

The letter of objection was out of time relative to the date of taxation, but the chamber summons was filed within 14 days of receipt of the taxing officer's reasons, so the reference was properly before the court.

Reasoning

Rule 11(2) allows an objector 14 days from receipt of the reasons for the decision to apply to a judge. Taxation occurred on 31st August 2018; the reasons were communicated on 1st October 2018 and the application was filed on 15th October 2018, within 14 days. The initial delay in lodging the objection with the taxing officer did not invalidate the reference.

p. 2
02

Merits of the objections to the taxation

Holding

The taxing officer erred by failing to tax contested items 4 to 286 of the bill and by applying the wrong principle in taxing item 1, warranting setting aside of the taxation.

Reasoning

The court found, on the objections set out in paragraph 8(i)–(ix) of the supporting affidavit, that the taxing officer taxed only items 1, 2 and 3 without sound reasons for omitting items 4 to 286, and misapplied principles in assessing item 1, producing an inordinately high award. The appropriate remedy was to set aside the taxation and remit the bill for fresh taxation.

p. 2

Legal principles established

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  • A reference under Rule 11(2) is filed in time if lodged within 14 days of receipt of the taxing officer's reasons, notwithstanding delay in seeking those reasons.

Court orders

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  1. 1.The taxation by the Deputy Registrar and the ruling dated 31st August 2018 is set aside
  2. 2.The bill of costs dated 13th March 2018 is referred back to the Taxing Officer to be taxed afresh
  3. 3.Costs of the application to be taken into account in the subsequent taxation

Authorities

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Legislation

  • Advocates (Remuneration) Order 1962Rule 11(1) and (2)
  • Advocates’ (Remuneration) (Amendment) Order 2009principles of taxation
Jurisdiction invoked
Rule 11(1) and (2) of the Advocates (Remuneration) Order 1962

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, "Fredrick Jacob Ochieng Obura & 7 others v Kisumu Municipal Council & another [2019] KEELRC 1193 (KLR)", Case Analysis (2019). Application dated 15th October 2018 (Reference under Rule 11 of the Advocates (Remuneration) Order 1962). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1193/eng@2019-07-09

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