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ELRCStruck OutNotice of Motion dated 14.5.2019 (within the claimants' suit against the respondent)· [2020] KEELRC 803 (KLR)

Agnes Muthoni & 34 others v Kenya Medical Research Institute (KEMRI);Institutes Staff of Kenya (Unrisk) (Interested Party) [2020] KEELRC 803 (KLR)

Employment and Labour Relations Court
26 June 2020
1,011 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This first-instance ruling by the Employment and Labour Relations Court at Nairobi (Onesmus N. Makau, J) dealt with a Notice of Motion dated 14 May 2019 by Wachakana & Co. Advocates, the former advocates of 35 claimants who had obtained judgment against the respondent. The applicant sought to be joined as a third party and to compel the respondent to pay taxed and certified Advocate-Client costs of Kshs. 759,566 plus interest, invoking sections 1A, 1B and 3A of the Civil Procedure Act and Order 23 of the Civil Procedure Rules. The claimants, the respondent and the interested party (a trade union) opposed the application as incompetent, arguing the court lacked jurisdiction as there was no employment relationship with the advocate, and that an advocate must obtain judgment on the taxed costs before executing. The court framed three issues: jurisdiction, competence and merit. It found the relationship between the advocate and the claimants was a contract for services by an independent contractor, not a contract of services, so the dispute fell outside Article 162(2)(a). Applying the Lilian S principle, the court held it had to down its tools. It further held that an advocate cannot execute for taxed costs before obtaining judgment under section 48 or 51 of the Advocates Act. The application was struck out with costs.

Key legal issues

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01

Jurisdiction of the Employment and Labour Relations Court over an advocate's claim for taxed costs against former clients

Holding

The court lacks jurisdiction because the relationship between the advocate and the claimants was a contract for services, not a contract of services, and thus not an employment and labour relations dispute.

Reasoning

The applicant admitted the claim arose from instructions given by the 35 claimants to file suit against the respondent. That relationship was a contract for services by an independent contractor, not a contract of service. Article 162(2)(a) confines this court to employment and labour relations disputes. Following the Lilian S precedent, the court must down its tools.

p. 2
02

Procedure for recovery of advocate-client taxed costs

Holding

The advocate must first seek judgment in the relevant forum and then execute under the Civil Procedure Rules; execution cannot precede judgment under section 48 or 51 of the Advocates Act.

Reasoning

Relying on the cited precedents, the court held that taxation of a Bill of Costs does not by itself permit execution. The applicant had to apply for judgment in the competent forum and then execute under the Civil Procedure Rules. The joinder of the advocate as a third party and the order compelling the respondent to pay could not be granted.

p. 2

Legal principles established

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  • A court must cease proceedings the moment it finds it lacks jurisdiction.
  • An advocate must obtain judgment under section 48 or 51 of the Advocates Act before executing for taxed costs.

Court orders

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  1. 1.The Notice of Motion dated 14.5.2019 is struck out.
  2. 2.The applicant shall pay the costs of the application.

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure RulesOrder 23 Rules 1, 2, 3, 4 & 5
  • Advocates Actsections 48 and 51
  • Constitution of KenyaArticle 162(2)(a)

Cases cited (6)

  • Khan & Katiku Advocates v Shabbir Motors Spares Ltd
    [2005] eKLR
  • Ragot & Company Advocates v West Kenya Wholesalers Ltd
    [2006] eKLR
  • C. Masinde & Co. Advocates v Panal Freighters Ltd
    [2019] eKLR
  • Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited
    [1989] eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd. & 2 Others
    [2012] eKLR
  • Nyabena Alfred t/a Nyabena Nyakundi & Company Advocates v Tourism Promotion Limited t/a Serena Hotel
    [2018] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution (employment and labour relations disputes)

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, "Agnes Muthoni & 34 others v Kenya Medical Research Institute (KEMRI);Institutes Staff of Kenya (Unrisk) (Interested Party) [2020] KEELRC 803 (KLR)", Case Analysis (2020). Notice of Motion dated 14.5.2019 (within the claimants' suit against the respondent). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/803/eng@2020-06-26

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