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ELRCPartially AllowedChamber Summons dated 23rd July 2024 (Reference against Taxing Officer's Ruling of 19th April 2024)· [2025] KEELRC 226 (KLR)

MM Kimuli & Company Advocates v Brinks Security Services Limited (Miscellaneous Application E124 of 2023) [2025] KEELRC 226 (KLR)

Employment and Labour Relations Court
31 January 2025
SRStella Rutto
1,876 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that lawyers' fees for ELRC cases must be taxed under Schedule 6, not the lower Schedule 7, and sent the bill for fresh taxation.

What this practically means

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Executive summary

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This is a first-instance Reference by way of Chamber Summons dated 23rd July 2024, filed by the Advocate/Applicant Morris Kimuli against the Taxing Officer's Ruling of 19th April 2024 taxing his Advocate/Client bill of costs dated 3rd November 2023 (Bill dated 9th June 2023) arising from Nairobi ELRC Cause No. 1516 of 2015 (Daniel Mwanzau Nzioka vs Brinks Security Services Ltd). The Applicant sought setting aside of the taxation of Items 1 and 2, contending the Taxing Officer wrongly applied Paragraph 58 and Schedule 7 of the Advocates Remuneration Order, 2014 instead of Schedule 6, since the ELRC is of equal status to the High Court; he also alleged the Taxing Officer applied Paragraph 58 suo moto without hearing the parties and committed an arithmetical error in the total award. The Client/Respondent opposed, arguing the application was defective for invoking the 2009 rather than 2014 Amendment Order and that the Taxing Officer applied the correct principles. The court framed one issue: whether it should interfere with the Taxing Officer's discretion, applying the First American Bank v Gulab Shah test of error of principle or manifestly excessive fees. Holding that the suit was filed in 2015 when magistrates' courts lacked employment jurisdiction (jurisdiction coming only via Gazette Notice No. 6024 of 2018) and was heard and determined in the ELRC, a court of equal status to the High Court, the court found Schedule 6 applied and the Taxing Officer's recourse to Rule 58 and Schedule 7 was an error of principle. The Chamber Summons was allowed; the taxation was set aside and remitted to a different Taxing Officer, with each party bearing its own costs.

Key legal issues

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Whether the Taxing Officer erred in principle by applying Paragraph 58 and Schedule 7 of the Advocates Remuneration Order instead of Schedule 6

Holding

The Taxing Officer erred: the correct scale was Schedule 6 since the suit was filed and determined in the ELRC, a court of equal status to the High Court, and at filing in 2015 the Magistrates' Courts lacked jurisdiction over employment disputes

Reasoning

The mother suit (ELRC Cause 1516 of 2015) was filed in 2015 when magistrates' courts had no jurisdiction over employment matters, jurisdiction being extended only by Gazette Notice No. 6024 of 2018. The ELRC, being of equal status to the High Court, attracted Schedule 6. Rule 58 deters forum shopping to obtain higher fees, which was not the intention here; the trial court also never transferred the matter to the magistrates' court. Applying Schedule 7 was therefore an error of principle justifying interference.

p. 4

Legal principles established

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  • A court cannot interfere with a Taxing Officer's decision 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
  • Rule 58 of the Advocates Remuneration Order is aimed at deterring litigants from filing in the High Court matters that could be filed in subordinate courts to attract higher fees

Court orders

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  1. 1.The taxation of the Bill of Costs dated June 9, 2023 is set aside and remitted for taxation by a different Taxing Officer
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Advocates Remuneration Order, 2014Paragraph 58; Schedule 6; Schedule 7
  • Advocates (Remuneration) (Amendment) Order 2009null
  • Advocates (Remuneration)(Amendment) Order, 2014Paragraph 58; Schedule 7
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48
  • Gazette Notice No. 6024 of 2018null

Cases cited (3)

  • Mwanza v Muslim Association (Mosque Committee Eldoret) (Cause 62 of 2017) [2022] KEELRC 13077 (KLR)
    (1st November 2022) (Ruling)
  • Joseph Mumali Wanga vs Blessed TC World Class Spares Limited
    (2021) eKLR
  • First American Bank of Kenya Ltd v Gulab P. Shah, Panachand Jivraj Shah & Dipack Panachand Shah
    [2002] KEHC 1277 (KLR)
Jurisdiction invoked
Reference against a Taxing Officer's ruling under the Advocates Remuneration Order

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, "MM Kimuli & Company Advocates v Brinks Security Services Limited (Miscellaneous Application E124 of 2023) [2025] KEELRC 226 (KLR)", Case Analysis (2025). Chamber Summons dated 23rd July 2024 (Reference against Taxing Officer's Ruling of 19th April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/226/eng@2025-01-31

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