William Kazungu Simbah v Kenya Airports Autthority [2021] KEELRC 2355 (KLR)
The bottom line
#A Kenyan court ruled that you cannot challenge a taxing officer's decision through review—you must file a reference under paragraph 11 of the Advocates Remuneration Order.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction to review, under section 80 of the Civil Procedure Act, the orders of 20th November 2020 striking out the taxation ruling of 5th March 2020 made by the Deputy Registrar as taxing officer
- 2.Whether the court can, on review, write reasons for the taxing master's decision in line with paragraph 11 of the Advocates Remuneration Order
- 3.Whether there is an error apparent on the face of the record warranting review
Key legal issues
#Jurisdiction to review a taxing officer's decision
The court lacks jurisdiction to review the Deputy Registrar's ruling as taxing officer by way of section 80 review; the proper remedy is a reference under paragraph 11(2) of the Advocates Remuneration Order
Section 80 confers review power over the court's own orders, similar to Rule 33 of the ELRC Procedure Rules. The impugned order of 20th November 2020 was that of the Deputy Registrar sitting as taxing officer, not of a judge. Paragraph 11 prescribes objections and a reference to a judge within 14 days of receipt of reasons. No reference was before the court, so the applicant was improperly before the court.
Whether the court can write reasons for the taxing master
The court cannot write reasons on behalf of the taxing master for a ruling delivered under paragraph 11
The applicant sought an alternative order compelling the court to write reasons for the 5th March 2020 taxation ruling. The court held this function belongs to the taxing officer under paragraph 11(2), which requires the taxing officer to record and forward reasons to the objector; a judge on reference does not assume that role.
Error apparent on the face of the record
Even assuming the application was properly before the court, it would fail because the order sought to be reviewed was not an order of the court but of the Deputy Registrar
The applicant alleged the 20th November 2020 ruling was outside what the parties had argued and thus contained an error apparent on the face of the record. The court did not determine the merits of this allegation, resting dismissal on jurisdiction: review under Rule 33 applies only to the court's own orders, and no such order was the subject of the application.
Legal principles established
#- An application for review in the ELRC is governed by Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and must relate to an order or decision of the judge who issued it
- Objections to a taxing officer's decision lie by way of reference to a judge under paragraph 11 of the Advocates Remuneration Order, not by review under section 80 of the Civil Procedure Act
Court orders
#- 1.Application dated 30th November, 2020 dismissed
- 2.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act; paragraph 11 of the Advocates Remuneration Order; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Relief refused
#Review of the orders of 20th November 2020 striking out the taxation ruling dated 5th March 2020
The order sought to be reviewed is that of the Deputy Registrar as taxing officer; review must be before the taxing officer, and only a reference under paragraph 11(2) of the Advocates Remuneration Order can address it
Direction that the court write reasons for the decision of 5th March 2020 under paragraph 11 of the Advocates Remuneration Order
The court cannot write reasons for the taxing master
Costs of the application
Application dismissed without good foundation; each party to bear own costs
Costs
Each party shall bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court has no jurisdiction to review a ruling of the taxing master and only a reference to this court can cure any matter thereof under the provisions of paragraph 11(2) of the Advocates Remuneration Order and not by a review under section 80 of the Civil Procedure Act
The review application must be before the Taxing Officer. Upon order of the Taxing Officer, this court can only address a reference thereof.
Accordingly, application dated 30th November, 2020 is found without good foundation and is hereby dismissed. each party shall bear own costs.
Issues in the judgment
#The judgment does not name the parties in the title or coram; parties are referred to only as 'the applicant', 'the claimant' and 'the advocate', and the case number of the suit is not stated
The bill of costs date is inconsistently stated as 3rd September 2019 in the grounds and 5th September 2019 in the claimant's submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Kazungu Simbah v Kenya Airports Autthority [2021] KEELRC 2355 (KLR)", Case Analysis (2021). Application dated 30th November, 2020 (ELRC Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2355/eng@2021-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.