Banking Insurance and Finance Union (Kenya) v KCB Bank (Kenya) Limited; Dishon Ochieng Achiro and 70 others (Interested Parties) [2020] KEELRC 472 (KLR)
The bottom line
#Kenya's Employment Court struck out a law firm's fee bill against a union because the firm's actual clients were KCB staff, not the union.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection meets the Mukisa Biscuits threshold of a pure point of law
The objection did not meet the threshold because it was supported by affidavit evidence and involved disputed facts, but the court treated it as an objection to the bill of costs and dealt with its substance.
The court applied the Mukisa Biscuits test that a preliminary objection must raise a pure point of law on assumed facts. Since the claimant filed a supporting affidavit, factual matters were in issue, disqualifying it as a true preliminary objection. Invoking Article 159, the judge proceeded to determine the substantive objection rather than dismissing it on a technicality.
Whether there was a retainer between the claimant union and Odinga Oboge Advocates such that the union is liable in the bill of costs
There was no agreement that the claimant would pay the advocates' fees; the advocates came on record through instructions by KCB unionisable employees/members, who made the payments, so the bill was filed against the wrong party.
The court examined the notice of appointment, the hand-over letter, minutes of the 11th September 2018 meeting, the members' notice to act in person, and cash payment receipts. These showed the unionisable staff, through the Central Staff Committee, instructed and paid the advocates, including payments before the 25th September 2018 meeting at which the union allegedly appointed the advocate. No agreement on the union paying fees was proved.
Legal principles established
#- A preliminary objection cannot be treated as such where it is supported by affidavit evidence raising disputed facts; the court may nonetheless deal with its substance under Article 159
- An advocate's bill of costs must be filed against the instructing party; where the evidence shows another party instructed and paid the advocate, the bill filed against the union is against the wrong party
Court orders
#- 1.The objection succeeds; the Bill of Costs dated 26th June 2019 is found to be filed against the wrong party
- 2.The Bill of Costs is struck out with no orders for costs
- Jurisdiction invoked
- Article 159 of the Constitution (powers of the court to deal with substance rather than technicalities); the court's inherent jurisdiction over taxation of advocate-client bills of costs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking Insurance and Finance Union (Kenya) v KCB Bank (Kenya) Limited; Dishon Ochieng Achiro and 70 others (Interested Parties) [2020] KEELRC 472 (KLR)", Case Analysis (2020). Cause 1619 of 2017 (related Advocate-Client Bill of Costs). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/472/eng@2020-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.