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ELRCDismissedNot stated in the extract (Cause filed in 2014)· [2023] KEELRC 2878 (KLR)

Opondo v Teachers Service Commission & another (Cause 240 of 2014) [2023] KEELRC 2878 (KLR)

Employment and Labour Relations Court
15 November 2023
RSRadido Stephen
648 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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The Taxing Officer taxed the Claimant's bill of costs on 2 August 2023 at Kshs 172,830/-. The 2nd Respondent sought reasons and then took out a Chamber Summons asking the Court to review, vary or set aside the taxation ruling in respect of specified items of the bill dated 14 March 2023, or in the alternative to remit the bill for taxation before the same or another Taxing Officer with directions, contending that since the Claimant had been awarded general damages of Kshs 100,000/-, taxation should have proceeded under Schedule 7 of the Advocates Remuneration Order rather than Schedule 6, and that Rule 58 of the 2014 Order was mandatory. The Claimant opposed, arguing principally that at the time the Cause was filed in 2014, subordinate courts had no jurisdiction over employment disputes - jurisdiction was only extended by Gazette Notice No. 6024 of 22 June 2018 - and that Rule 58 was not mandatory and could not override the Taxing Officer's discretion. In submissions the 2nd Respondent relied on Joseph Mumali Wanga v Blessed TC World Class Spares Ltd, while the Claimant cited Kipkorir Tito & Kirwa Advocates v Deposit Protection Fund and American Bank of Kenya v Stal & Ors. The Court held that the Cause was filed and determined when the ELRC had jurisdiction; it could have been transferred but was not, and the 2nd Respondent neither sought transfer nor a Rule 58 order before judgment. Finding no wrong exercise of discretion or legal fault, the Court dismissed the 2nd Respondent's application with costs on 15 November 2023.

Key legal issues

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01

Applicable schedule for taxation where the cause pre-dated the conferral of employment jurisdiction on subordinate courts

Holding

The Taxing Officer correctly applied Schedule 6 of the Advocates Remuneration Order; Rule 58 did not compel taxation on the subordinate court scale because the cause was heard and determined while the ELRC had jurisdiction and the respondent never sought transfer or a Rule 58 order.

Reasoning

The Cause was filed in 2014, when subordinate courts had no jurisdiction over employment disputes; jurisdiction was only extended by Gazette Notice of 22 June 2018. The cause was heard and determined at a time when the ELRC retained jurisdiction. The Court could have transferred the cause but did not, and the 2nd Respondent neither requested transfer nor sought a Rule 58 order before judgment. Accordingly no error of discretion or law was shown in the taxation.

p. 2

Legal principles established

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  • Section 29 of the Employment and Labour Relations Court Act empowers the Court to award costs guided by the Advocates (Remuneration) Order.
  • Where a cause is filed and determined when the High Court/ELRC had exclusive jurisdiction over employment disputes, and no transfer to the subordinate court was sought, the taxing officer may properly apply Schedule 6 of the Advocates Remuneration Order notwithstanding later conferral of jurisdiction on subordinate courts.

Court orders

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  1. 1.The 2nd Respondent's application (Chamber Summons seeking review of the Taxing Officer's ruling) is dismissed
  2. 2.Costs of the Reference awarded to the Claimant

Authorities

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Legislation

  • Advocates Remuneration OrderSchedule 6; Schedule 7; Rule 58
  • Advocates Remuneration Order, 2014Rule 58
  • Employment and Labour Relations Court ActSection 29
  • Gazette Notice No. 6024 of 22 June 2018

Cases cited (3)

  • Joseph Mumali Wanga v Blessed TC World Class Spares Ltd
    (2021) eKLR
  • Kipkorir Tito & Kirwa Advocates v Deposit Protection Fund
    (2005) eKLR
  • American Bank of Kenya v Stal & Ors
    (2002) EA 64
Jurisdiction invoked
Section 29 of the Employment and Labour Relations Court Act

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, "Opondo v Teachers Service Commission & another (Cause 240 of 2014) [2023] KEELRC 2878 (KLR)", Case Analysis (2023). Not stated in the extract (Cause filed in 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2878/eng@2023-11-15

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