Kellum Aluha Chandai v Clerk to County Assembly of Bungoma & 2 others; County Assembly of Bungoma & another (Interested Parties) [2021] KEELRC 243 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant proved an agreement waiving the taxed costs of Kshs. 291,435/-
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.
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.
Whether the Applicant deserved the discretionary and equitable relief of stay of execution of costs
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.
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.
Legal principles established
#- 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
#- 1.The court discharged its interim order dated 14th October 2021 issued on 15th October 2021 (temporary stay of execution of costs)
- 2.The Notice of Motion dated 13th October 2021 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.