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ELRCDismissedMisc Application No E211 of 2021· [2023] KEELRC 2755 (KLR)

Kenya Local Government Workers Union & another v Industrial Court of Kenya; National Union of Water & Sewerage Employees & another (Interested Parties); Kenya County Government Workers Union (Respondent); Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Applicant) (Miscellaneous Application E211 of 2021) [2023] KEELRC 2755 (KLR)

Employment and Labour Relations Court
2 November 2023
2,479 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court confirmed it can tax lawyers' bills in employment matters, refusing to transfer a decade-old fees dispute to the High Court.

What this practically means

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Executive summary

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This was a first-instance ruling of the Employment and Labour Relations Court at Nairobi (Dr. Jacob Gakeri, J) on a Notice of Motion dated 3rd July 2023 by the applicant, Kenya County Government Workers Union, seeking transfer of ELRC MISC/E211/2021 (an Advocates' Bill of Costs dated 11th November 2021) to the High Court for re-taxation, or alternatively an order that the Advocate/respondent withdraw the bill and file it in the High Court. The applicant, through an affidavit of Roba Duba, argued that the bill emanated from High Court Judicial Review Miscellaneous Application No. 30 of 2011, heard and determined by Hon. Justice Odunga before the ELRC became operational, and that there was no record of transfer to the ELRC, so the ELRC Deputy Registrar lacked jurisdiction to tax. The applicant also filed a preliminary objection on jurisdiction. The respondent, the advocate on record, opposed, contending that a ruling had already directed re-taxation on instruction fees only, that the applicant never objected to jurisdiction earlier, and that the application was a delaying tactic. The court framed two issues: whether the preliminary objection met the Mukisa Biscuits threshold, and whether the file should be transferred. It held the objection qualified as a point of law but failed on the merits, since under Article 162(2) of the Constitution and Section 12 of the ELRC Act the ELRC and its Deputy Registrars sitting as Taxing Officers have jurisdiction to tax bills of costs in employment and labour relations matters. The court also reasoned that a court without jurisdiction has nothing to transfer, that transfer is an administrative matter, and that the application was intended to delay conclusion of the taxation. Both the preliminary objection and the Notice of Motion were dismissed, with no orders as to costs.

Key legal issues

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Whether the preliminary objection challenging the Taxing Officer's jurisdiction met the Mukisa Biscuits threshold

Holding

The preliminary objection met the threshold since it questioned jurisdiction, a pure point of law, but it failed on the merits because the ELRC has jurisdiction to tax bills of costs arising from employment and labour relations matters

Reasoning

Applying Mukisa Biscuits, an objection to jurisdiction is a pure point of law and thus qualifies as a preliminary objection. However, the court derived its jurisdiction from Article 162(2) of the Constitution and Section 12 of the ELRC Act, which establish the ELRC as a court of equal status with the High Court with jurisdiction over employment and labour relations matters, including taxation of bills of costs. The objection was therefore dismissed.

p. 5
02

Whether the bill of costs should be transferred to the High Court for re-taxation

Holding

The transfer application was refused because transfer is an administrative matter, the taxation was at an advanced stage with a ruling on re-taxation pending, and the application was seen as a delaying tactic

Reasoning

The court relied on Ali Jarso Wako that transfer of files is an administrative matter aimed at facilitating speedy disposition. The matter was at an advanced stage, with a ruling directing re-taxation of instruction fees pending. The applicant had not raised the jurisdictional issue when the bill was first placed before the Deputy Registrar, and the court accepted the respondent's argument that the application was calculated to slow down final disposition to the respondent's detriment.

p. 6

Legal principles established

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  • The Registrar and Deputy Registrars of the ELRC sitting as Taxing Officers have jurisdiction to tax Advocates' Bills of Costs in employment and labour relations matters
  • If a court has no jurisdiction to hear and determine a suit before it, there is nothing capable of being transferred to another court

Court orders

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  1. 1.The Notice of Preliminary Objection dated 8th August 2023 is dismissed as unmerited
  2. 2.The Notice of Motion dated 3rd July 2023 is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51, rule 1
  • Employment & Labour Relations Court ActSection 12
  • Employment and Labour Relations Court (Procedure) Rules, 2016not specified
  • Constitution of Kenya, 2010Article 162(2)

Cases cited (6)

  • Ali Jarso Wako & another v Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others (Interested Parties)
    [2020] eKLR
  • Kinyua Muyaa & Co. Advocates vs Kenya Ports Authority Pension scheme & 8 others
    (2015) eKLR
  • David Kabungu vs Zikarenga & 4 Others
    Kampala HCC No. 36 of 1995
  • Mukisa Biscuits Manufacturing Co. Ltd V West End Distributors Ltd
    (1969) EA 696
  • Samuel K. Macharia & another V Kenya Commercial Bank & 2 others
    (2012) eKLR
  • Macharia & Co. Advocates V Magugu
    (2002) EA 428
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 and Section 12 of the Employment and Labour Relations Court Act, 2011

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, "Kenya Local Government Workers Union & another v Industrial Court of Kenya; National Union of Water & Sewerage Employees & another (Interested Parties); Kenya County Government Workers Union (Respondent); Leonard K. Mbuvi t/a Katunga Mbuvi & Co. Advocates (Applicant) (Miscellaneous Application E211 of 2021) [2023] KEELRC 2755 (KLR)", Case Analysis (2023). Misc Application No E211 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2755/eng@2023-11-02

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