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ELRCPartially AllowedMisc Application No E128 of 2023· [2025] KEELRC 236 (KLR)

MM Kimuli & Co Advocates v Brinks Security Services Ltd (Miscellaneous Application E128 of 2023) [2025] KEELRC 236 (KLR)

Employment and Labour Relations Court
31 January 2025
1,929 words in judgment
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The bottom line

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A Kenyan court ruled that advocate fees for employment cases must be calculated under the higher Schedule 6 scale, not Schedule 7, and ordered fresh taxation.

What this practically means

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Executive summary

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This was a reference by the Advocate, Morris Kimuli, by Chamber Summons dated 23rd July 2024, challenging the Taxing Officer's ruling of 19th April 2024 on his Advocate/Client bill of costs dated 9th June 2023, arising from ELRC Cause No. 276 of 2017 (Festus Kiplangat Chepkwony v Brinks Security Services Ltd). The Applicant sought setting aside of the taxation of Items 1 and 2, contending the Taxing Officer wrongly applied Rule 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 and, at the time of filing in 2017, magistrates' courts had no jurisdiction over employment disputes. He also alleged an arithmetical error in the conclusive total and breach of natural justice for not being heard on Rule 58. The Respondent opposed, arguing the application was incompetent and that the Taxing Officer correctly applied Paragraph 58 and Schedule 7. Framing the sole issue as whether the court should interfere with the Taxing Officer's discretion, the court applied the First American Bank v Shah test. It held the applicable scale was Schedule 6, that Rule 58 was meant only to deter forum shopping, and that applying it here was an error of principle. The court allowed the reference, set aside the taxation of the bill and remitted it for taxation by a different Taxing Officer, with each party bearing its own costs. Judgment was delivered at Nairobi on 31st January 2025 by Stella Rutto, J.

Key legal issues

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Whether the Taxing Officer erred in principle in applying Rule 58 and Schedule 7 of the Advocates Remuneration Order, 2014 instead of Schedule 6

Holding

The Taxing Officer erred in principle: the mother suit was filed and determined in the ELRC, a court of equal status to the High Court, and when filed in 2017 magistrates' courts had no jurisdiction over employment disputes, so Rule 58 and Schedule 7 were inapplicable.

Reasoning

The court reasoned that Rule 58 applies only to causes which could have been brought in a subordinate court. The cause was filed in 2017, before magistrates' courts were conferred jurisdiction over employment matters by Gazette Notice No. 6024, and the ELRC is of equal status to the High Court. The suit could not have been filed in the Magistrates' Court, and the ELRC heard it to conclusion without transfer, so Schedule 6 applied and applying Schedule 7 was an error of principle.

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
  • Where proceedings were in the ELRC, a court of equal status to the High Court, and the subordinate courts had no jurisdiction over employment disputes at filing, the applicable scale on taxation is Schedule 6 rather than Schedule 7

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 (Rule 58); Schedule 6; Schedule 7
  • Advocates (Remuneration) (Amendment) Order 2009
  • Advocates (Remuneration) (Amendment) Order, 2014
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 159(2)(d); Article 48
  • Gazette Notice No. 6024

Cases cited (3)

  • Mwanza v Muslim Association (Mosque Committee Eldoret) (Cause 62 of 2017) [2022] KEELRC 13077 (KLR)
    [2022] KEELRC 13077 (KLR)
  • 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 (Chamber Summons jurisdiction); Employment and Labour Relations Court as court of equal status to the High Court

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 & Co Advocates v Brinks Security Services Ltd (Miscellaneous Application E128 of 2023) [2025] KEELRC 236 (KLR)", Case Analysis (2025). Misc Application No E128 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/236/eng@2025-01-31

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