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ELRCDismissedCause No 539 of 2017· [2023] KEELRC 1762 (KLR)

Kemunto v Leo Investment Limited t/a The Concord Hotels (Cause 539 of 2017) [2023] KEELRC 1762 (KLR)

Employment and Labour Relations Court
24 July 2023
1,958 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 dismissed an employer's challenge to a Kshs.192,205 costs award, confirming ELRC taxation follows High Court rules and challenges need specific proof.

What this practically means

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Executive summary

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The applicant, by Chamber Summons dated 6th April 2023, sought to set aside the Taxing Master's ruling of 21st March 2023, by which party and party costs of Kshs.192,205/= were assessed on the applicant under Schedule VI of the Advocates (Remuneration) (Amendment) Order, 2014, following a judgment of 13th December 2022 awarding the Claimant Kshs.86,176/= with costs. The applicant contended that the Taxing Master erred in principle by applying Schedule VI instead of Schedule VII, awarded costs nearly three times the decretal sum, and failed to consider its submissions. The Claimant/Respondent opposed, asserting the matter was concluded in a court of the status of the High Court so Schedule VI correctly applied, that no specific item was challenged as excessive, and that the Remuneration Order contains no Section 58. The court framed a single issue: whether the Chamber Summons was merited. It held that the applicant bore the burden of demonstrating an error of principle or manifest excess causing injustice, but made no reference to any error of principle, did not isolate any objected item, and offered only a blanket objection to the whole Bill. Schedule VI governs High Court costs while Schedule VII governs subordinate courts, and treating the ELRC as subordinate would contradict Article 162(2) of the Constitution. The complaint about ignored submissions was unsubstantiated, and in any event submissions are neither evidence nor pleadings. The Chamber Summons was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Taxing Master erred in principle by applying Schedule VI instead of Schedule VII of the Advocates Remuneration Order, 2014

Holding

No error of principle; Schedule VI correctly applies to proceedings in the High Court and Schedule VII applies to subordinate courts, and the ELRC is not a court subordinate to the High Court

Reasoning

The court observed that Schedule VI addresses costs of proceedings in the High Court while Schedule VII addresses costs in subordinate courts. Applying Schedule VII would imply the ELRC is subordinate to the High Court, contrary to Article 162(2) of the Constitution, which confers on the ELRC the status of a superior court of equal standing.

p. 4
02

Whether the applicant demonstrated an error of principle or manifest excess justifying interference with the taxation

Holding

No; the applicant did not isolate any specific item objected to, made no allegation of specific error of principle, and adduced no evidence

Reasoning

The supporting affidavit made no reference to any error of principle and no allegation that the Taxing Officer considered or failed to consider any particular circumstance. The blanket objection to the entire Bill of Costs suggested, without evidence, that the Taxing Officer got everything wrong, which the court rejected.

p. 4
03

Whether the Taxing Master failed to consider the applicant's submissions

Holding

The allegation was unsubstantiated; the applicant did not attach the submissions or identify the issues said to have been ignored, and in any event submissions are neither evidence nor pleadings

Reasoning

The applicant did not attach a copy of the submissions for the court's perusal nor demonstrate which arguments were ignored. Relying on authority, the court held that while courts should consider submissions, they are not evidence or pleadings and are not binding on the court.

p. 4

Legal principles established

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  • A court will not interfere with a taxing officer's decision unless it is shown the decision was based on an error of principle or the fee awarded was manifestly excessive so as to justify an inference of error of principle
  • Schedule VI of the Advocates (Remuneration) (Amendment) Order, 2014 governs costs of proceedings in the High Court; Schedule VII governs subordinate courts, and the ELRC is not subordinate to the High Court
  • Submissions are neither evidence nor pleadings and are not binding on the court

Court orders

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  1. 1.The Chamber Summons dated 6th April, 2023 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Advocates (Remuneration) (Amendment) Order, 2014Schedule VI; Schedule VII; Clause 11
  • Constitution of Kenya, 2010Article 162(2); Article 159(2)(d); Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (4)

  • Republic V Ministry of Agriculture & 2 others Ex Parte Muchiri Njuguna & others
    (2006) eKLR
  • Kipkorir, Tito & Kiara Advocates V Deposit Protection Fund Board
    (2005) eKLR
  • Daniel Toroitich Arap Moi V Mwangi Stephen Muriithi & another
    (2014) eKLR
  • Imperial Bank Ltd V Bakari Juma Bechpende
    (2016) eKLR
Jurisdiction invoked
Application by Chamber Summons under Clause 11 of the Advocates Remuneration (Amendment) Order, 2014 to a judge; reference to Article 162(2) of the Constitution on the status of the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kemunto v Leo Investment Limited t/a The Concord Hotels (Cause 539 of 2017) [2023] KEELRC 1762 (KLR)", Case Analysis (2023). Cause No 539 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1762/eng@2023-07-24

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