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ELRCDismissedPreliminary Objection dated September 26, 2022 in taxation proceedings arising from Nakuru ELRC Miscellaneous Application No. 17 of 2019· [2023] KEELRC 110 (KLR)

Kariuki & 16 others v Kenya Agricultural Research Institute (Petition 2 of 2013) [2023] KEELRC 110 (KLR)

Employment and Labour Relations Court
26 January 2023
HWHellen Wasilwa
2,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru, delivered virtually on January 26, 2023 by Hellen Wasilwa J, determined a preliminary objection dated September 26, 2022 raised by the respondent in pending taxation proceedings. The respondent objected that the petitioner's bill of costs had been filed not in the original court file but in a miscellaneous/skeleton file, contending this was contemptuous of the court's ruling of January 23, 2020 in Nakuru ELRC Miscellaneous Application No. 17 of 2019, and sought that the bill of costs be declared null and void and struck out with costs. The petitioner, through a replying affidavit sworn by its advocate Wilfred Nyaundi Konosi, explained that the original file could not be traced, that the January 23, 2020 ruling laid down steps for opening a skeleton file and directed the Deputy Registrar to attend to them, and that these steps were followed before the bill of costs was filed. Both parties filed written submissions. The respondent relied on authorities on preliminary objections and contempt of court orders, arguing that the bill filed before leave to open a skeleton file was an illegality. The petitioner relied on the Mukisa Biscuit test, submitting that no law requires a bill of costs to be taxed in the original file. The court found the applicants had not exhibited any order requiring taxation in the original file, held that no law imposes such a requirement, and viewed the objection as a technicality aimed at delaying the matter. The preliminary objection was dismissed with costs to the respondents.

Key legal issues

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01

Preliminary objection must raise a pure point of law

Holding

The objection failed because it depended on contested factual and procedural circumstances and on no rule of law

Reasoning

The court applied the Mukisa Biscuit formulation requiring a pure point of law argued on assumed facts. The applicants alleged an order directing taxation in the original file but exhibited none. Since no law mandated filing in the original file, and the bill was filed in a reconstructed file following the January 23, 2020 ruling, the objection rested on a mere technicality and was dismissed.

p. 4
02

Compliance with prior court orders on reconstruction of the file

Holding

The bill of costs filed in the skeleton file complied with the January 23, 2020 ruling and was not contemptuous

Reasoning

The January 23, 2020 ruling in Misc. 17 of 2019 laid down steps for opening a skeleton file and directed the Deputy Registrar to attend to them. The petitioner averred those steps were followed and the original file could not be traced. The applicants did not exhibit any order requiring taxation in the original file, so no contempt or illegality was established.

p. 5

Legal principles established

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  • There is no legal requirement that a bill of costs be filed or taxed in a cause's original file; taxation may proceed in a skeleton or reconstructed file where the original file cannot be traced

Court orders

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  1. 1.The preliminary objection dated September 26, 2022 is dismissed
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Employment Actsection 3

Cases cited (5)

  • George Otieno Gache & Another v Judith Akinyi Bonyo & 5 others
    [2019] eKLR
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696
  • Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning and 3 others
    [2017] eKLR
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another
  • Burchell v Burchell
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over taxation of costs; sections 3 of the Employment Act invoked by the petitioner

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, "Kariuki & 16 others v Kenya Agricultural Research Institute (Petition 2 of 2013) [2023] KEELRC 110 (KLR)", Case Analysis (2023). Preliminary Objection dated September 26, 2022 in taxation proceedings arising from Nakuru ELRC Miscellaneous Application No. 17 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/110/eng@2023-01-26

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