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ELRCStruck OutELRC Miscellaneous Application (Chamber Summons dated 15th June 2022)· [2022] KEELRC 1239 (KLR)

Langat t/a Kolato Auctioneers v Sitienei & another (Miscellaneous Application E016 of 2021) [2022] KEELRC 1239 (KLR)

Employment and Labour Relations Court
21 July 2022
HWHellen Wasilwa
1,970 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court struck out an application to challenge taxed auctioneers' costs because the applicants skipped the mandatory 14-day objection step under the Advocates Act.

What this practically means

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Executive summary

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This was a Chamber Summons application dated 15th June 2022 brought by the Applicants (the University of Eldoret side, through Hosea Sitienei) under Rule 55(5) of the Auctioneers Rules 1997 and Articles 50 and 159 of the Constitution, seeking stay of execution of the taxing officer's decision of 30th November 2021, cross-examination of the process server, and enlargement of time to file an appeal against the taxation. The Respondent, an auctioneer, opposed the application, asserting that the Bill of costs and taxation notices were served by WhatsApp through a process server, that he acted on instructions from the Applicants' advocates, that the Applicants were paid their dues following proclamation, and that his fees remained unpaid. The Applicants argued the warrants of attachment underlying the fees had been declared null and void, that taxation proceeded in defiance of stay orders, and that the costs awarded were excessive. Delivering the court's decision on 21st July 2022, Lady Justice Hellen Wasilwa found service of the Bill of Costs and Certificate of Costs to have been proper, rejected the claim that taxation occurred under a subsisting stay order - noting the Supreme Court had dismissed the application for stay of execution before taxation - and observed that the Applicants had never filed an objection to the taxing master's decision as required by section 11 of the Advocates Act. With no proper objection proceedings before the court, the application was irregularly before it. The court struck out the application with costs to the Respondent.

Key legal issues

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01

Whether service of the Bill of Costs, taxation notice and certificate of costs was proper

Holding

Service was proper, effected through WhatsApp by a court process server as evidenced by the affidavits of service

Reasoning

The court examined the affidavit of service dated 13th October 2021 which indicated the manner of service of the Bill of Costs, and was satisfied that service was proper. The Certificate of Costs was also served on 22nd December 2021. The Applicants did not oppose the WhatsApp service, undermining their claim of ignorance of the taxation proceedings.

p. 4
02

Whether the Bill was taxed while stay of execution orders were in place

Holding

The Bill was taxed and the ruling delivered on 30th November 2021 after the Supreme Court in Petition No. 33 of 2019 had dismissed the application for stay of execution; the claim of an existing stay was false

Reasoning

The court noted that taxation and the ruling of 30th November 2021 occurred after the Supreme Court dismissed the application for stay of execution. It therefore rejected the Applicants' central ground that the taxing master erred in proceeding when stay orders were in place.

p. 4
03

Whether the court could stay the taxing officer's decision and enlarge time to appeal absent objection proceedings

Holding

The Applicants never objected to the taxing master's decision as required by section 11 of the Advocates Act; no proper objection proceedings were before the court, rendering the application irregular and liable to be struck out

Reasoning

Section 11 of the Advocates Act prescribes the procedure: a party dissatisfied with a taxing officer's decision must give written notice of objection within fourteen days, then apply to a judge by chamber summons setting out the grounds. There was no indication the Applicants complied, and no objection proceedings were placed before the court. The application was therefore irregularly before the court.

p. 5

Legal principles established

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  • A party dissatisfied with a taxing officer's decision must, within fourteen days of the decision, give notice in writing of the items objected to, and thereafter may apply to a judge by chamber summons; leave is required for any appeal to the Court of Appeal
  • The High Court retains discretion to enlarge time fixed for taking steps under section 11 of the Advocates Act

Court orders

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  1. 1.The Chamber Summons application dated 15th June 2022 is struck out
  2. 2.Costs of the application are awarded to the Respondent

Authorities

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Legislation

  • Advocates ActSection 11
  • Constitution of KenyaArticles 50 and 159
  • Auctioneers Rules 1997Rule 55(5)

Cases cited (2)

  • Central Bank of Kenya and another V Ratilal Automobiles Limited & others
    Civil Application number Nai.247 of 2006
  • Isaac Kipyegon Langat T/A Kalato Auctioneers V University of Eldoret
    [2021] eKLR
Jurisdiction invoked
Rule 55(5) of the Auctioneers Rules 1997 and Articles 50 and 159 of the Constitution of Kenya, 2010

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, "Langat t/a Kolato Auctioneers v Sitienei & another (Miscellaneous Application E016 of 2021) [2022] KEELRC 1239 (KLR)", Case Analysis (2022). ELRC Miscellaneous Application (Chamber Summons dated 15th June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1239/eng@2022-07-21

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