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ELRCStruck OutChamber Summons dated 30th March 2023 (reference against ruling of 14th March 2023)· [2024] KEELRC 226 (KLR)

Mwaura & 11 others v Kenya Power & Lightinig Company (Employment and Labour Relations Cause 2575 of 2016) [2024] KEELRC 226 (KLR)

Employment and Labour Relations Court
9 February 2024
AMAnna Ngibuini Mwaure
2,500 words in judgment
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The bottom line

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A Kenyan court struck out a challenge to a Kshs 12 million taxation award because the objector skipped the mandatory objection steps under Rule 11 of the Advocates Remuneration Order.

What this practically means

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Executive summary

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The Respondent/Applicant filed a Chamber Summons dated 30th March 2023 seeking to set aside the Taxing Officer's decision of 14th March 2023 on numerous items of the Claimant's Party and Party Bill of Costs dated 19th August 2022, and to have instruction fees reassessed at Kshs 2,229,484 and getting up fees at Kshs 743,161.33 based on the judgment sum of Kshs 135,298,934.11, or alternatively to have the Bill remitted to a different Taxing Officer. The Respondent argued the Taxing Officer's award of Kshs 9,000,000 instruction fees and Kshs 3,000,000 getting up fees was an astronomical, unjustified increase amounting to an error in principle. The Claimant opposed, submitting the application was fatally defective: no notice of objection was lodged under Rule 11(1) of the Advocates Remuneration Order, the Taxing Master's reasons were never obtained, the application was filed out of the 14-day statutory period without leave, and a reference ought to have been brought by miscellaneous application. The court agreed, holding that the reference filed only three days after the ruling, without a notice of objection and without the Taxing Master's reasons, breached the mandatory procedure in Rule 11(1) and (2), leaving the court without any basis to evaluate the impugned items. Applying Muriu Mungai and Paul Gicheru, the court found the application unmerited, struck it off, and ordered each party to meet their respective costs. The ruling of 14th March 2023 was left undisturbed.

Key legal issues

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01

Compliance with Rule 11 procedure for objecting to a taxing officer's decision

Holding

The reference was fatally defective because the Respondent did not lodge a notice of objection under Rule 11(1) and did not receive the Taxing Master's reasons under Rule 11(2) before moving the court

Reasoning

The Taxing Officer delivered her ruling on 14th March 2023 and the Respondent filed the reference on 17th March 2023, only three days later, without lodging a notice of objection. A letter of 15th March 2023 to the Deputy Registrar seeking reasons was not awaited. Without the taxing master's reasons the court has no basis to evaluate the objection, and the mandatory procedure under Rule 11(1) and (2) having been breached, the court cannot entertain the reference.

p. 5

Legal principles established

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  • An objector to a taxation must, under Rule 11(1) of the ARO, give notice in writing of objection within fourteen days and await the Taxing Officer's reasons before applying to a judge; a reference filed without following this procedure is a nullity and robs the court of jurisdiction

Court orders

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  1. 1.The reference application dated 30th March 2023 was found unmerited and struck off
  2. 2.Each party to meet their respective costs

Authorities

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Legislation

  • Advocates (Remuneration)(Amendment) Order, 2014Schedule 6, Paragraph 1(b); Rule 11(1), 11(2), 11(4)
  • Advocates Remuneration Order, 2014 (Rev 2022)Rule 11
  • Constitution of KenyaArticle 159(2)(d); Article 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (2)

  • Muriu Mungai & Co. Advocates v New Kenya Co-Operative Creameries Ltd
    Nairobi (Milimani) HCMC No 692 of 2007
  • Paul Gicheru T/A Gicheru & Co. Advocates v Kargua (K) Construction Co. Ltd
    Eldoret HCMCA No 124 of 2007
Jurisdiction invoked
Rule 11 of the Advocates (Remuneration) Order 2014 (Rev 2022) - reference to a judge against the Taxing Officer's decision

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, "Mwaura & 11 others v Kenya Power & Lightinig Company (Employment and Labour Relations Cause 2575 of 2016) [2024] KEELRC 226 (KLR)", Case Analysis (2024). Chamber Summons dated 30th March 2023 (reference against ruling of 14th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/226/eng@2024-02-09

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