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ELRCPartially AllowedMisc Application No 3B of 2019· [2021] KEELRC 159 (KLR)

Eric Bett & another v County Assembly of Kericho & another; Samy Kimutai Rono & another (Interested Parties) [2021] KEELRC 159 (KLR)

Employment and Labour Relations Court
16 December 2021
OMOnesmus N. Makau
1,269 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 gave parties 14 more days to challenge a Kshs. 713,610 taxed bill because they were never notified of the ruling.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Nakuru (Onesmus N. Makau, J) determined a chamber summons dated 6/10/2021 brought by the respondents in the suits under Article 159(2)(d) of the Constitution, paragraph 11(4) of the Advocates Remuneration Order and sections 1A and 3A of the Civil Procedure Act. The applicants sought stay of execution of a Certificate of Taxation dated 15/7/2021 and enlargement of the 14-day period for lodging an objection to the taxing officer's decision of 7/7/2021, by which their opponents' bill of costs was taxed at Kshs. 713,610. They contended they were never notified of the decision before the objection period lapsed. The petitioners, who filed submissions but no affidavit response, argued that an email of 2/7/2021 with a cause list and virtual court link had notified the parties of the ruling date, and relied on Addax Kenya Limited v NEMA to urge security as a condition of any stay. The court perused the record and found no evidence of service of notice of the ruling or the decision; the alleged email was not exhibited and remained a submission from the bar. Holding that the applicants were entitled to notice to enable them exercise their right of challenge under Rule 11, and that they would lose their right of appeal forever if the application failed while the petitioners showed no irremediable prejudice, the court granted the applicants 14 days to file their reference. However, the stay of execution was refused as premature since no reference was yet on file, and the petitioners were awarded throw away costs of Kshs. 30,000 payable before the hearing of the reference. The application was therefore partially allowed. The ruling was delivered online in line with Covid-19 directions, the parties having waived compliance with Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether time for filing an objection and reference under Rule 11 of the Advocates Remuneration Order should be enlarged

Holding

Time was enlarged because the applicants were not served with notice of the taxing master's ruling or decision before the 14-day period lapsed

Reasoning

The court perused the record and found no evidence that the parties were given prior notice of the ruling delivered on 7/7/2021 or notified of the decision before the lapse of the time for lodging a reference. The email allegedly sent on 2/7/2021 was not availed in evidence, so the claim of notification remained a submission from the bar. Since the applicants lost their right of appeal if the application was dismissed, and the petitioners showed no irremediable prejudice, the discretion was exercised in the applicants' favour.

p. 2
02

Whether execution of the Certificate of Taxation should be stayed pending the intended reference

Holding

Stay was refused as premature because the reference had not yet been filed

Reasoning

The court held that a stay of execution pending a reference cannot issue where the reference does not yet exist. Since the applicants were granted 14 days to file the reference, the question of stay would arise only once the reference is on file. The petitioners, who were not to blame for the application, were compensated with throw away costs of Kshs. 30,000 payable before the hearing of the reference.

p. 2

Legal principles established

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  • A party to a taxation is entitled to notice of the ruling date or notice of the decision soon after delivery to enable the party exercise the right of challenge under Rule 11 of the Advocates Remuneration Order; absence of such notice is sufficient ground to enlarge time
  • An email alleged to have notified parties of a ruling date, but not exhibited before the court, remains a submission from the bar and cannot found a finding of service

Court orders

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  1. 1.Leave granted: the applicants are granted 14 days within which to file their reference against the decision of the taxing officer dated 7/7/2021
  2. 2.Request for stay of execution of the Certificate of Taxation refused as premature
  3. 3.Throw away costs of Kshs. 30,000 awarded to the petitioners, payable before the hearing of the reference

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Advocates Remuneration OrderParagraph 11(4); Rule 11
  • Civil Procedure ActSections 1A and 3A
  • Civil Procedure RulesOrder 42 rule 6
  • ELRC Procedure RulesRule 28(3)

Cases cited (1)

  • Addax Kenya Limited v National Environment Management Authority & another
    [2017] eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya; paragraph 11(4) of the Advocates Remuneration Order; sections 1A and 3A of the Civil Procedure Act

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, "Eric Bett & another v County Assembly of Kericho & another; Samy Kimutai Rono & another (Interested Parties) [2021] KEELRC 159 (KLR)", Case Analysis (2021). Misc Application No 3B of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/159/eng@2021-12-16

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