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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 2379 (KLR)

Olus v Intra Health International (Cause 2161 of 2015) [2024] KEELRC 2379 (KLR)

Employment and Labour Relations Court
30 September 2024
1,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court extended time for an employer to challenge a Kshs.300,000 costs award, ruling that filing delays can be forgiven when a Taxing Master withholds the ruling.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Nairobi (Gakeri J) determined a Chamber Summons dated 6th March, 2024 in which the Respondent/Applicant sought extension of time to file a reference against the Taxing Master's ruling of 30th November, 2023, which awarded the Claimant Kshs.300,000/= as party and party costs despite finding that the parties had agreed on costs, there being no proof of payment. The Applicant explained that its letters of 29th November, 2023 and 11th January, 2024 requesting the ruling went unanswered; it obtained the ruling only on 22nd February, 2024 and filed the application in March 2024, outside the fourteen-day windows in Rules 11(1) and 11(2) of the Advocates Remuneration Order. The application was ultimately unopposed: the Respondent never filed a Replying Affidavit or submissions, and the parties had been negotiating an out-of-court settlement. Relying on Donholm Rahisi Stores v E.A. Portland Cement Ltd, the Court reiterated that taxation is a special jurisdiction of the Taxing Officer entered only by way of a Rule 11 reference. It held that Rule 11(2) uses permissive "may" rather than mandatory "shall", that the delay was not inordinate, and that justice required the reference be heard on the merits. The Court granted only Prayer 1 (extension of time to file and serve the reference), struck out all other orders sought, and directed that each party bear their own costs.

Key legal issues

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01

Whether extension of time to file a reference out of a Taxing Officer's decision should be granted despite the applicant not invoking Rule 11(1) within 14 days

Holding

Extension of time was granted; the delay was not inordinate because the applicant only obtained the ruling on 22nd February, 2024 after unavailing requests for a copy.

Reasoning

The Applicant requested the ruling by letters dated 29th November, 2023 and 11th January, 2024 which went unanswered, obtaining the ruling only on 22nd February, 2024, and filed the application in March 2024. Rule 11(2) uses "may" rather than "shall", and the application was unopposed with parties negotiating. The interests of justice favoured ventilating the reference on the merits.

p. 4
02

Whether failure by the Taxing Officer to provide reasons is fatal to a reference

Holding

No; reasons are typically contained in the ruling itself.

Reasoning

Relying on Ahmed Nassir v National Bank of Kenya and Bernard Gichohi Njira v Kanini Njira Kathendu & another, the Court noted that judicial authority is consistent that absence of separate reasons does not defeat a reference since the reasons are usually embedded in the ruling.

p. 3
03

Whether the decretal sum awarded under Section 49(2) of the Employment Act could include agreed costs

Holding

The Respondent's contention that the Court did not order the Kshs.1,357,044.00 to be taxed was fortified by Section 49(2) of the Employment Act on statutory deductions.

Reasoning

Section 49(2) provides that payments made by the employer under that section are subject to statutory deductions, which supports the argument that the sum of Kshs.1,249,930.80 paid represented the net award, though the Court left the question for the reference.

p. 4

Legal principles established

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  • Taxation of costs is a special jurisdiction reserved to the Taxing Officer; the Court engages with it only by way of a Rule 11 reference.
  • The word "may" in Rule 11(2) of the Advocates Remuneration Order renders the fourteen-day period after receipt of reasons permissive rather than mandatory, informing whether delay is inordinate.

Court orders

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  1. 1.Prayer No. 1 of the Chamber Summons dated 6th March, 2024 granted, extending time to enable the Applicant file and serve the Reference application
  2. 2.All other orders sought in the application struck out
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Advocates Remuneration OrderRule 11(1), Rule 11(2), Rule 10
  • Employment ActSection 49(2)
  • Constitution of KenyaArticle 159(2)(d), Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Donholm Rahisi Stores (firm) V E.A. Portland Cement Ltd
    (2005) eKLR
  • Machira and Company Advocates V Magugu
    (2002) 2 E.A 248
  • Ahmed Nassir V National Bank of Kenya
    (2006) EA
  • Bernard Gichohi Njira V Kanini Njira Kathendu & another
    (2015) eKLR
Jurisdiction invoked
Rule 11(2) of the Advocates Remuneration Order (extension of time to file a reference against a Taxing Master'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, "Olus v Intra Health International (Cause 2161 of 2015) [2024] KEELRC 2379 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2379/eng@2024-09-30

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