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ELRCDismissedCause No 454 of 2012· [2020] KEELRC 995 (KLR)

Hellen Waseka v Middle East Bank Kenya Limited [2020] KEELRC 995 (KLR)

Employment and Labour Relations Court
21 May 2020
1,862 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that its Deputy Registrar can tax costs bills using the same rules as the High Court.

What this practically means

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Executive summary

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This was a Notice of Motion filed on 18/11/2019 by Middle East Bank Kenya Limited seeking to set aside or declare a nullity directions given by the Deputy Registrar on 5th November 2019 to tax a Bill of Costs dated 15th January 2019, to set aside orders declining to place its Preliminary Objection before a Judge, and to have that objection determined by a learned Judge of the ELRC. The applicant argued that the Deputy Registrar lacks jurisdiction to tax a bill of costs founded on the Advocates (Remuneration) Order because Rule 2 of that Order applies only to the High Court, subordinate courts and Rent Tribunals, and that the ELRC, being a separate superior court under Article 162(2)(a) of the Constitution and Section 4 of the ELRC Act, is not a High Court under Article 165(3)(e), relying on Republic v Karisa Chengo. The respondent countered that a taxing officer sits as a judicial officer, that the ELRC has the status of the High Court under Article 162(2)(a), and cited Kinyua Muyaa and the Asanyo decision, distinguishing Karisa Chengo as concerning criminal jurisdiction of ELRC judges. Wasilwa J held that the ELRC, being of the same status as the High Court, applies the same taxation regime, guided by Rule 29 of the ELRC Rules 2016 and Section 12(4) of the ELRC Act, noting the position in USIU v Attorney General as reaffirmed in Mugendi. The Court found the application without merit, dismissed it, directed the Deputy Registrar to proceed with the taxation as scheduled, and awarded costs to the respondent.

Key legal issues

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01

Whether the ELRC can apply the Advocates (Remuneration) Order in taxing Bills of Costs

Holding

Yes - the Court, having the status of the High Court under Article 162(2)(a), applies taxation as provided for the High Court, guided by Rule 29 of the ELRC Rules 2016

Reasoning

The Court noted the applicant's contention that Rule 2 of the Advocates (Remuneration) Order applies only to the High Court, subordinate courts and Rent Tribunals, and that the ELRC is a separate court under Article 162(2)(a). The Court nonetheless held that the ELRC enjoys the same status as the High Court and that taxation as applied in the High Court applies to the ELRC under Rule 29, which directs the Court to be guided by Section 12(4) of the ELRC Act and the Advocates (Remuneration) Order.

p. 3
02

Whether the Deputy Registrar has jurisdiction to tax the Bill of Costs

Holding

Yes - the Deputy Registrar may proceed with taxation

Reasoning

The Court accepted that a taxing officer sits as a judicial officer and that the taxation regime of the High Court applies mutatis mutandis to the ELRC. Having dismissed the application, the Court directed the Deputy Registrar to proceed with the taxation as scheduled, noting that the Court itself had become functus officio after delivery of judgment in the main suit.

p. 3
03

Whether the Preliminary Objection should be heard by a Judge rather than the Deputy Registrar

Holding

No - the objection falls within the ambit of determination of costs and may be handled by the Deputy Registrar

Reasoning

The Respondent's counsel had conceded the Court was functus officio after judgment, and the Court had referred the Preliminary Objection and taxation to the Deputy Registrar. Since the taxation framework applies to the ELRC, there was no basis for directing the objection to a Judge. The application was therefore dismissed with costs.

p. 2

Legal principles established

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  • The ELRC, being of the same status as the High Court under Article 162(2) of the Constitution, applies the same taxation regime as the High Court
  • A Taxing Master is a judicial officer and taxation applies to the ELRC by use and custom through Rule 29 of the ELRC Rules 2016

Court orders

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  1. 1.The Notice of Motion filed on 18/11/2019 is dismissed
  2. 2.The Deputy Registrar to proceed with the taxation as earlier scheduled
  3. 3.Costs to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a); Article 165(3)(e); Article 41
  • Employment and Labour Relations Court Act (No. 20 of 2011)Section 4; Section 12(4)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 29(1)
  • Advocates (Remuneration) Order, 1962Rule 2; Rule 13A; Schedule 6
  • Industrial Court Act, 2011Section 12

Cases cited (6)

  • Republic v Karisa Chengo & 2 Others
    [2017] eKLR
  • Wilfred N. Konosi t/a Konosi & Co. Advocates v Fiamco Limited
    [2017] eKLR
  • Kinyua Muyaa & Co. Advocates v Kenya Ports Authority Pension Scheme & 8 Others
    [2015] eKLR
  • Geoffrey Makana Asanyo v Nakuru Water & Sanitation Company Ltd & 8 Others
    [2015] eKLR
  • United States International University (USIU) vs Attorney General
    (2012) eKLR
  • Daniel N. Mugendi versus Kenyatta University & 3 Others
    CACA No.6/2012 (2013) eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution; Section 12(4) of the Employment and Labour Relations Court Act; Rule 29 of the ELRC (Procedure) Rules 2016

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, "Hellen Waseka v Middle East Bank Kenya Limited [2020] KEELRC 995 (KLR)", Case Analysis (2020). Cause No 454 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/995/eng@2020-05-21

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