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ELRCPartially AllowedCause 1619 of 2017 (related Advocate-Client Bill of Costs)· [2020] KEELRC 472 (KLR)

Banking Insurance and Finance Union (Kenya) v KCB Bank (Kenya) Limited; Dishon Ochieng Achiro and 70 others (Interested Parties) [2020] KEELRC 472 (KLR)

Employment and Labour Relations Court
18 September 2020
3,809 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The firm of Odinga Oboge Advocates filed an Advocate-Client Bill of Costs against the Banking, Insurance and Finance Union (Kenya) (BIFU), seeking taxation of legal fees in respect of Cause 1619 of 2017. The union filed a notice of preliminary objection, supported by an affidavit of its Secretary General Isaiah Munoru, contending that it was not the instructing party and that the advocates were retained and paid by the KCB Central Staff Committee on behalf of KCB unionisable employees. The advocates opposed through replying affidavits of Edward Oboge, Erick Pudha and Gabriel Okomo Odhiambo, arguing that a retainer existed with the union by conduct, particularly a meeting of 25th September 2018 at which the union allegedly appointed the advocate as lead counsel. In submissions, the advocates relied on authorities on implied retainer, estoppel and the requirement that a preliminary objection be a pure point of law. Applying the Mukisa Biscuits test, the court held that the objection, being supported by affidavit, was not strictly a preliminary objection, but under Article 159 dealt with its substance as an objection to the bill. Examining 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 predating the alleged appointment, the court found the advocates were instructed and paid by the unionisable staff and not the union. The objection succeeded; the bill of costs was struck out with no orders for costs. Judgment was delivered at Nairobi on 18th September 2020 by Maureen Onyango, J.

Key legal issues

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01

Whether the preliminary objection meets the Mukisa Biscuits threshold of a pure point of law

Holding

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.

Reasoning

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.

p. 3
02

Whether there was a retainer between the claimant union and Odinga Oboge Advocates such that the union is liable in the bill of costs

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The objection succeeds; the Bill of Costs dated 26th June 2019 is found to be filed against the wrong party
  2. 2.The Bill of Costs is struck out with no orders for costs

Authorities

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Legislation

  • Advocates ActSection 45
  • Advocates ActSection 2
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (8)

  • Zakhem Construction (Kenya) Limited v Mereka & Company Advocates
    Civil Appeal 365 of 2014
  • Ochieng, Onyango, Kibet & Ohaga Advocates v Akiba Bank Limited
    [2007] eKLR
  • Esther Nyambura Waweru v Andrew Waiganjo Mweri
    [2017] eKLR
  • Wilmot Mwadilo & 3 Others v Eliud Timothy Mwamunga & Another
    [2017] eKLR
  • Accredo AG & 3 Others v Steffano Ucelli & Another
    [2018] eKLR
  • Samuel Waweru v Geoffrey Mwangi
    [2013] eKLR
  • Joseph Oduor Anode v Kenya Red Cross Society
    [2009] eKLR
  • Mukisa Biscuits Manufacturing Co. Limited v West End Distributors Limited
    [1969] EA 696
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

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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, "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.