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ELRCDismissedJudicial Review Application arising from Bungoma ELRC Miscellaneous Application No. 02 of 2020 (Notice of Motion dated 13th October 2021)· [2021] KEELRC 243 (KLR)

Kellum Aluha Chandai v Clerk to County Assembly of Bungoma & 2 others; County Assembly of Bungoma & another (Interested Parties) [2021] KEELRC 243 (KLR)

Employment and Labour Relations Court
6 December 2021
1,503 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Bungoma dismissed an attempt to avoid Kshs. 291,435 in legal costs, ruling the applicant failed to prove any agreement waiving them.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Bungoma (J. W. Keli, J) determined a Notice of Motion dated 13th October 2021 in which the ex-parte Applicant sought dispensation of service, a temporary stay of execution of costs, and a declaration that the Respondents' costs were fully settled. The costs of Kshs. 291,435/- had been taxed on 9th August 2021 by Deputy Registrar Hon. E. N. Mwenda following the dismissal, with costs, of the Applicant's judicial review application in Bungoma ELRC Miscellaneous Application No. 02 of 2020 (Nduma J, judgment dated 11th February 2021) arising from his suspension by the County Assembly of Bungoma. An auctioneer's proclamation on 23rd September 2021 prompted the application. The court granted an ex-parte interim stay on 14th October 2021 and directed inter-partes hearing by written submissions. The 1st Respondent denied any agreement waiving the costs. The Applicant alleged that minutes evidencing a waiver were in the Respondents' custody but made no attempt to have them produced. The court held that one who alleges must prove, that the burden lay on the Applicant, and that the claimed waiver was unproved. It further found that the Applicant misled the court in the certificate of urgency. The interim stay was discharged and the Notice of Motion dismissed with costs on 6th December 2021. The Respondents and Interested Parties relied on the clean-hands maxim and three authorities, none of which the court expressly adopted.

Key legal issues

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01

Whether the Applicant proved an agreement waiving the taxed costs of Kshs. 291,435/-

Holding

The Applicant failed to prove the alleged waiver; the burden of proof on a balance of probabilities lay on him and no minutes or documents evidencing waiver were produced or sought to be compelled.

Reasoning

The court perused the reinstatement letter, the invitation to appear before the Board and the auctioneer's proclamation and found nothing concerning waiver of costs. The Applicant alleged that the minutes containing the waiver were in the custody of the Respondents, but the court held that the law permits a party to apply to compel production of documents, and the Applicant made no attempt even to request the minutes. The allegation of waiver therefore remained unproved on a balance of probabilities.

p. 2
02

Whether the Applicant deserved the discretionary and equitable relief of stay of execution of costs

Holding

The Applicant, having misled the court in the certificate of urgency and having approached the court without clean hands, did not deserve the equitable remedy sought; the interim stay was discharged and the application dismissed.

Reasoning

The Respondents and Interested Parties argued, citing the maxim 'equity aids those who approach it with clean hands' and supporting authorities, that the Applicant lied about the existence of an agreement on costs. The court found as a fact that there was no evidence that costs had been waived, that the Applicant misled the court to obtain the ex-parte stay, and accordingly discharged the interim order and dismissed the application with costs.

p. 2

Legal principles established

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  • The burden of proving an alleged waiver of costs lies on the party asserting it; the fact that the counterparty holds the relevant records does not relieve the asserting party of that burden, as the law allows a party to apply to court to compel production of documents.
  • A litigant who misleads the court to obtain interim relief forfeits that relief; the interim order obtained on the strength of misleading averments will be discharged.

Court orders

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  1. 1.The court discharged its interim order dated 14th October 2021 issued on 15th October 2021 (temporary stay of execution of costs)
  2. 2.The Notice of Motion dated 13th October 2021 is dismissed with costs

Authorities

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Cases cited (3)

  • Mohammed Sahlly Sese -vs- Fulson Company ltd and Another
    (2006) eKLR
  • John Njue Nyaga vs Nicholas Njiru Nyagaga & another
    (2013) EKLR
  • Francis Kabaa -vs- Nancy Wambui & Another
    (1996) EKLR
Jurisdiction invoked
Inherent jurisdiction of the ELRC over its own proceedings and costs (the underlying suit was a judicial review application under Bungoma ELRC Miscellaneous Application No. 02 of 2020)

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, "Kellum Aluha Chandai v Clerk to County Assembly of Bungoma & 2 others; County Assembly of Bungoma & another (Interested Parties) [2021] KEELRC 243 (KLR)", Case Analysis (2021). Judicial Review Application arising from Bungoma ELRC Miscellaneous Application No. 02 of 2020 (Notice of Motion dated 13th October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/243/eng@2021-12-06

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