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ELRCOtherNot stated in the judgment· [2023] KEELRC 2747 (KLR)

Universities Academic Staff v Kirinyaga University (Cause 2 of 2022) [2023] KEELRC 2747 (KLR)

Employment and Labour Relations Court
3 November 2023
OMOnesmus N Makau
1,013 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a flawed challenge to a costs ruling, confirming that objections to a taxing master's decision must follow Rule 11 of the Advocates Remuneration Order exactly.

What this practically means

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Executive summary

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The respondent filed a preliminary objection dated October 25, 2023 seeking dismissal of the claimant's Chamber Summons dated October 12, 2023 on the ground that the court's jurisdiction had not been properly invoked under rule 11 of the Advocates Remuneration Order. The dispute arose from a taxation ruling of May 17, 2023 in which the taxing master awarded the respondent Kes 3,796,159 in party and party costs. The claimant filed a notice of objection and requested reasons on the day of the ruling but none were furnished; the respondent meanwhile began execution. The Chamber Summons sought stay of execution of the taxation ruling, setting aside or quashing of the decision 'by way of reference', and alternatively re-taxation or reference of the bill to another taxing officer. The claimant's counsel conceded the application was not a reference but an application for stay pending a proper reference once reasons were supplied. The court, per Onesmus N Makau J, held that the prayers collapsed into a stay application and a challenge to the taxation decision, making it in substance a reference which had not been properly instituted. Satisfied that the summons was a 'mongrel of proceedings' that failed to invoke the court's jurisdiction, the court allowed the objection and struck out the summons with costs. As a parting shot, the court directed the taxing master's ruling to be typed, certified and supplied to the claimant within 14 days, preserved its right to file a reference under rule 11 thereafter, and ordered status quo maintained for 14 days.

Key legal issues

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01

Whether the Chamber Summons dated October 12, 2023 properly invoked the court's jurisdiction

Holding

The court held that the summons, seeking stay of execution and setting aside/re-taxation of the taxing master's decision, was in substance a reference under rule 11 of the ARO, which had not been properly instituted, and struck it out.

Reasoning

The court analysed the prayers in the Chamber Summons and found they collapsed into a stay of execution pending determination and a setting aside/quashing of the taxing master's decision with re-taxation. Despite the claimant's counsel conceding it was not a reference, the court held that by its nature the application was a reference against the taxing master's decision. Since no proper reference under rule 11 had been filed, jurisdiction was not invoked and the summons was a 'mongrel of proceedings' liable to be struck out.

p. 2
02

Whether the claimant retains a right to challenge the taxing master's decision

Holding

The court noted that the taxing master never furnished reasons or a typed ruling despite the claimant's request, and preserved the claimant's right to file a reference under rule 11 once the typed, certified ruling is supplied.

Reasoning

The court observed that the claimant filed a notice of objection and sought reasons on the day the taxation ruling was delivered, but no reasons were provided and no typed ruling was rendered. As a parting shot, the court directed that the ruling be typed, certified and supplied within 14 days, after which the claimant could exercise its rights under rule 11 of the ARO, including seeking stay of execution. Status quo was maintained for 14 days.

p. 3

Legal principles established

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  • The jurisdiction of the High Court/ELRC over a taxing master's decision can only be invoked by way of a reference under rule 11 of the Advocates Remuneration Order

Court orders

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  1. 1.The respondent's preliminary objection is allowed and the Chamber Summons dated October 12, 2023 is struck out with costs
  2. 2.The ruling of the taxing master is to be typed, certified and supplied to the claimant within 14 days
  3. 3.Status quo to be maintained for 14 days to enable the claimant to obtain the typed copy of the ruling

Authorities

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Legislation

  • Advocates Remuneration OrderRule 7
  • Advocates Remuneration OrderRule 11
  • Civil Procedure Rules 2010Order 22 Rule 52
  • Civil Procedure ActSections 1, 1A, 3A and 3B
  • ELRC Procedure RulesRule 28(3)
Jurisdiction invoked
Jurisdiction under the Employment and Labour Relations Court Act as invoked through the Advocates Remuneration Order and Civil Procedure Act provisions cited in the Chamber Summons

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, "Universities Academic Staff v Kirinyaga University (Cause 2 of 2022) [2023] KEELRC 2747 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2747/eng@2023-11-03

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