Kemboy Law Advocates v Narok County Government (Miscellaneous Application E120 of 2023) [2024] KEELRC 2365 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court ruled that arbitration can only be invoked through a timely stay application, not a preliminary objection, reviving an advocate's fee taxation.
What this practically means
#Executive summary
#Key legal issues
#Whether a party may invoke an arbitration clause through a Preliminary Objection rather than an application for stay
No. Section 6(1) of the Arbitration Act requires a party to apply for stay not later than the time of entering appearance or acknowledging the claim; a Preliminary Objection is not the proper vehicle.
The court traced the statutory text and case law, including the Court of Appeal in Eunice Soko Mlagui confirming pre-2009 decisions, which held that even where conditions (a) and (b) are satisfied, a stay may be rejected if the application is not made at the time of entering appearance or is made after filing a defence. The Client had entered appearance on 10th July 2023 and filed a replying affidavit and submissions, thereby acknowledging the claim without applying for stay.
Whether Article 159(2)(d) could save the Taxing Officer's reliance on the Preliminary Objection despite improper procedure
No. The requirement in Section 6(1) is a substantial legal matter, not a technicality, and Article 159(2)(d) cannot cure every legal misstep.
The court relied on the Supreme Court's decision in Nicholas Kiptoo Arap Salat v IEBC that Article 159(2)(d) cannot be used to cure every legal misstep, and adopted the holding in Diocese of Marsabit Registered Trustees v Technotrade Pavillion Ltd that the Section 6(1) requirement is substantial, aimed at efficacious dispute resolution through arbitration where a party applies promptly for stay. The Taxing Officer, though aware the Client had not approached the court properly, erred in invoking Article 159(2)(d).
Whether the Taxing Officer's decision should be reviewed and set aside
Yes. The decision was set aside and the Bill of Costs remitted for taxation before a different Taxing Officer.
Applying the established instances in which a taxing officer's decision may be set aside (error of principle, manifestly excessive award or inconsistency in awards, per Premchand Raichand, First American Bank and Joreth Ltd), the court found the Taxing Officer had misapplied binding jurisprudence by staying taxation and referring the dispute to arbitration when the Client had failed to invoke Section 6 of the Arbitration Act in the manner prescribed by law.
Legal principles established
#- An application for stay of proceedings under Section 6 of the Arbitration Act cannot be disguised as a preliminary point of law; a party seeking to invoke an arbitration clause must apply not later than the time of entering appearance or otherwise acknowledging the claim.
- The procedure set out in Section 6(1) of the Arbitration Act is not a mere technicality which Article 159(2)(d) of the Constitution can cure.
Court orders
#- 1.The decision by Hon Fredrick M. Nyamora dated 21st December 2023 is set aside
- 2.The Advocate-Client Bill of Costs dated 5th June 2023 is remitted for taxation before another Taxing Officer, other than Hon Nyamora
- 3.The Advocate is awarded the costs of the application
- Jurisdiction invoked
- Inherent jurisdiction to review a Taxing Officer's ruling; Advocates (Remuneration) Order, Paragraph 11(2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemboy Law Advocates v Narok County Government (Miscellaneous Application E120 of 2023) [2024] KEELRC 2365 (KLR)", Case Analysis (2024). Chamber Summons application dated 7th February 2024 (Advocate-Client Bill of Costs dated 5th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2365/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.