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ELRCPartially AllowedELRC Miscellaneous Application No. E001 of 2024· [2024] KEELRC 1674 (KLR)

Eldoret Polytechnic v In the matter of Advocate Stanley N Kagunza together with Evaline Sabayi Aseneka Andambi & Cedric Andambi Alubala Suing as administrators & administratix of the Estate of the Late Abenayo Alubala Andambi t/a Andambi & Company Advocates (Miscellaneous Application 1 of 2024) [2024] KEELRC 1674 (KLR)

Employment and Labour Relations Court
28 June 2024
2,320 words in judgment
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The bottom line

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The ELRC allowed Kenyatta University to challenge a taxed legal fee bill late, cutting it sharply after finding the taxing officer ignored a Kshs 300,000 deposit already paid.

What this practically means

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Executive summary

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The Applicant, a polytechnic, applied by Chamber Summons dated 22nd January 2024 under Rule 11 of the Advocates Remuneration Order for leave to file a reference out of time against a ruling of the Deputy Registrar (taxing master) delivered on 24th November 2023, which taxed the Respondent's advocate-client bill of costs dated 9th November 2021 at Kshs 387,670. The Applicant contended the taxing master erred by failing to deduct a Kshs 300,000 deposit paid towards fees in Nakuru Industrial Case No. 211 of 2015 (later Eldoret ELRC Cause No. 254B of 2017), leaving the bill excessive and violating its right of access to justice at a reasonable fee. It also sought stay of execution and restraint of sale of proclaimed property. The Respondent opposed, arguing the 14-day timeline under Rule 11 had not been explained, the retainer agreement was unsigned and lacked nexus to the suit, and prejudice would ensue. Framing three issues - extension of time, review of the ruling, and costs - the court found the delay satisfactorily explained (the applicant learned of the ruling on 6th December 2023 and counsel's offices were closed over December), granted leave. On the merits, applying First American Bank of Kenya v Shah, it held the retainer agreement covered 2015 to 2017 and the taxing master's failure to account for the Kshs 300,000 deposit was an error of principle. The ruling was reviewed by deducting the deposit and the bill re-taxed at Kshs 87,680, with each party bearing its own costs of the application.

Key legal issues

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01

Extension of time to file reference against a taxing master's decision

Holding

Leave granted; the applicant satisfactorily explained the delay in learning of the ruling and instructing counsel.

Reasoning

Rule 11 permits the court to enlarge time even after expiry. The applicant's further affidavit showed it learned of the ruling on 6th December 2023 through its counsel's letter, sought instructions, and found counsel's offices closed over the December period. The court accepted this chronology as a satisfactory explanation for the delay in filing the reference.

p. 4
02

Error of principle in taxation - failure to deduct deposit already paid

Holding

The taxing master erred in principle by failing to deduct the Kshs 300,000 deposit already paid to the respondent.

Reasoning

A retainer agreement on record covered the period 2015 to 2017, encompassing Nakuru ELRC No. 211 of 2015 (later transferred to this court as Cause No. 254B of 2017). The applicant's attachment CCK2 evidenced payment of a Kshs 300,000 deposit by cheque delivered on 11th April 2016. The taxing master ought to have taken this deposit into account, and its omission constituted an error of principle warranting review.

p. 5

Legal principles established

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  • A court cannot interfere with a taxing officer's decision on taxation unless it is shown the decision was based on an error of principle or the fee awarded was so manifestly excessive as to justify an inference of an error of principle.
  • Time fixed under Rule 11 of the Advocates Remuneration Order may be enlarged by the court in its discretion even where the time sought to be enlarged has already expired.

Court orders

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  1. 1.Leave granted to file the reference out of time (delay explained satisfactorily)
  2. 2.The Ruling of the Taxing Master dated 24th November 2023 reviewed by deducting Kshs 300,000 already paid as deposit
  3. 3.The Advocate Client bill of costs dated 9th November 2021 taxed at Kshs 87,680
  4. 4.Each party to bear its own costs of the application

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11
  • Employment and Labour Relations Court Actsections 3 and 12
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 28
  • Civil Procedure RulesOrder 22 Rule 22

Cases cited (1)

  • First American Bank of Kenya vs Shah and Others
    [2002] E.A.L.R 64 AT 69
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order; sections 3 and 12 of the Employment and Labour Relations Court Act; Rule 28 of the ELRC (Procedure) Rules, 2016; Order 22 Rule 22 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, "Eldoret Polytechnic v In the matter of Advocate Stanley N Kagunza together with Evaline Sabayi Aseneka Andambi & Cedric Andambi Alubala Suing as administrators & administratix of the Estate of the Late Abenayo Alubala Andambi t/a Andambi & Company Advocates (Miscellaneous Application 1 of 2024) [2024] KEELRC 1674 (KLR)", Case Analysis (2024). ELRC Miscellaneous Application No. E001 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1674/eng@2024-06-28

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