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ELRCDismissedCause No 156 of 2017· [2024] KEELRC 783 (KLR)

Ondieki v Falcon Signs Limited (Cause 156 of 2017) [2024] KEELRC 783 (KLR)

Employment and Labour Relations Court
16 April 2024
JGJACOB GAKERI
2,980 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Nairobi court dismissed a bid to challenge taxed legal costs, confirming Kenyan law only allows challenges through the proper Rule 11 objection procedure.

What this practically means

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Executive summary

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The Respondent/Applicant, by Notice of Motion dated 4th August 2023 supported by the affidavit of Heena Joshi, sought leave to file written submissions opposing the Claimant's Party to Party Bill of Costs dated 25th November 2022, directions for inter partes hearing, and stay of warrants of attachment and proclamation dated 3rd August 2023, contending the Bill was undefended, excessive and that the warrants were defective. The Claimant/Respondent opposed, showing the Bill and taxation notice were served by email on 24th April 2023; the Bill was taxed unopposed and a ruling delivered on 9th June 2023 allowing Kshs.306,236/=, with a Certificate of Taxation issued and served, after which warrants issued. The court framed a single issue: whether the motion was merited. It traced the history: the underlying employment suit was decided on 26th October 2022 awarding Kshs.34,000/= plus costs; the decretal sum was paid but costs remained. The court held that the only route to challenge a taxed Bill is a reference under Rule 11 of the Advocates Remuneration Order after written notice of objection, which the applicant never invoked. The motion did not even reference the Taxing Officer's ruling, and no error of principle or manifest excess was demonstrated. Notably the motion misstated the award as Kshs.445,901/= when it was Kshs.306,236/=. Dismissing the application, the court ordered payment of Kshs.306,236/= without interest within 45 days, failing which interest would accrue, and directed each party to bear its own costs.

Key legal issues

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01

Whether the application was a competent challenge to the taxation of the Party to Party Bill of Costs

Holding

It was not: the applicant never gave notice of objection under Rule 11 nor filed a reference, and the motion did not attack the Taxing Officer's ruling of 9th June 2023

Reasoning

The Advocates Remuneration Order prescribes the procedure: a written notice of objection within 14 days, reasons from the Taxing Officer, then a chamber summons reference to a judge. The applicant took no such step and instead sought to re-open a Bill already taxed by ruling of 9th June 2023. The court found the ruling unchallenged and no error of principle demonstrated, warranting dismissal.

p. 6
02

Whether the court could interfere with the Taxing Officer's award

Holding

No - the award of Kshs.306,236/= was not shown to rest on an error of principle

Reasoning

Following First American Bank of Kenya v Shah and Republic v Ministry of Agriculture Ex Parte Muchiri W'Njuguna, interference is only warranted on an error of principle or manifestly excessive fee. The ruling addressed all items in the Bill, and the applicant, which wrongly cited the award as Kshs.445,901/=, failed to identify any specific error of principle.

p. 6

Legal principles established

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  • The only way to challenge a decision on taxation of a Bill of Costs is by a reference under Rule 11 of the Advocates Remuneration Order, after notice of objection to the Taxing Officer
  • A court will not interfere with a taxing officer's decision unless it is shown to be based on an error of principle or the fee was manifestly excessive

Court orders

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  1. 1.The Notice of Motion dated 4th August, 2023 is dismissed
  2. 2.Applicant/Respondent to pay the sum of Kshs.306,236/= without interest within 45 days failing which interest shall accrue from the date of award by the Taxing Officer
  3. 3.Parties shall bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63
  • Civil Procedure RulesOrder 51 Rule 1; Order 21 Rule 1; Order 42 Rule 6
  • Advocates Remuneration OrderRules 10, 11; Schedule VI; Schedule 4
  • Advocates Remuneration (Amendment) Order, 2014Schedule VI

Cases cited (14)

  • First American Bank of Kenya V Shah & others
    (2002) E.A CA 64 / (2002) 1 EA 64 at 69
  • Joreth Ltd V Kigano & Associates
    (2002) 1 E.A 92
  • Sound Entertainment Ltd V Antony Burugu & Co. Advocates
    (2014) eKLR
  • County Government of Tana River V Miller & Co. Advocates
    (2012) eKLR
  • Absalom Dova V Tarbo Transporters
    (2013) eKLR
  • Sunsand Dunes Ltd V Raiya Construction Ltd
    (2021) eKLR
  • Republic V Kenya Urban Roads Authority & 3 others Ex Parte Cytonn Investments Management Ltd
    (2018) eKLR
  • Grace Wangui Ngenye V Wilfred Kiboro & another
    (2013) eKLR
  • Donholm Rahisi Stones (firm) V E.A Portland Cement Ltd
    (2005) eKLR
  • Machira and Company Advocates V Magugu
    (2002) 2 EA 248
  • Ahmed Nassir V National Bank of Kenya
    (2006) EA
  • Bernard Gichohi Njira V Kanini Njira Kathendu & another
    (2015) eKLR
  • Republic V Ministry of Agriculture & 2 others Ex Parte Muchiri W'Njuguna & others
  • Kipkorir Tito & Kiara Advocates V Deposit Protection Fund Board
    (2005) eKLR
Jurisdiction invoked
Article 159(2) of the Constitution of Kenya, 2010; Sections 1A, 1B, 3, 3A, 63 of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

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, "Ondieki v Falcon Signs Limited (Cause 156 of 2017) [2024] KEELRC 783 (KLR)", Case Analysis (2024). Cause No 156 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/783/eng@2024-04-16

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