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ELRCAllowedChamber Summons dated 23rd July 2024 (Reference against Taxing Officer's Ruling of 19th April 2024)· [2025] KEELRC 253 (KLR)

MM Kimuli & Co Advocates v Brinks Security Services Ltd (Miscellaneous Application E122 of 2023) [2025] KEELRC 253 (KLR)

Employment and Labour Relations Court
31 January 2025
SRStella Rutto
1,878 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 advocates defending ELRC cases deserve the higher High Court fee scale, not the lower magistrates' court scale.

What this practically means

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Executive summary

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The Advocate/Applicant filed a 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, which arose from the defence of an employment cause (Daniel Odhiambo Owino vs Brinks Security Services Ltd, ELRC Cause No. 2162 of 2014) determined by the ELRC on 12th July 2019. The Applicant sought setting aside of the taxation of Items 1 and 2, correction of the conclusive total, and costs, contending that the Taxing Officer should have applied Schedule 6 (High Court scale) rather than Schedule 7 (subordinate court scale) via Paragraph 58, that Paragraph 58 was applied suo moto without hearing the Applicant, and that the final total contained an arithmetical error. The Respondent opposed, arguing the application was incompetent and the taxation was correct in law. The court framed one issue: whether it should interfere with the Taxing Officer's discretion. Applying the First American Bank v Shah test, the court held that because the cause was filed in 2014 when magistrates' courts lacked employment jurisdiction (extended only by Gazette Notice No. 6024 of 2018) and the ELRC is of equal status to the High Court, Schedule 6 applied; Rule 58 targets forum shopping absent here. The Taxing Officer therefore erred in principle. The Chamber Summons was allowed, the taxation set aside and remitted for taxation by 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, 2014 instead of Schedule 6

Holding

The Taxing Officer erred; the applicable scale was Schedule 6 since the mother suit was filed and determined in the ELRC, a court of equal status to the High Court, and magistrates' courts had no jurisdiction over employment disputes when the cause was filed in 2014.

Reasoning

The cause was filed in 2014 when magistrates' courts lacked jurisdiction over employment disputes, jurisdiction having been extended only by Gazette Notice No. 6024 of 2018. The ELRC, being of equal status to the High Court, attracted Schedule 6. Rule 58 exists to deter litigants from forum shopping into the High Court for higher fees, an intention absent here. Applying Schedule 7 therefore amounted to 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 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, applying subordinate court scales, is meant to deter litigants from filing in the High Court matters that would ordinarily be filed in subordinate courts; it does not apply where the suit could not have been brought in a subordinate court.

Court orders

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  1. 1.The taxation of the Bill of Costs dated 9th June 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 2009
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (3)

  • First American Bank of Kenya Ltd v Gulab P. Shah, Panachand Jivraj Shah & Dipack Panachand Shah
    [2002] KEHC 1277 (KLR)
  • 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
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 & Co Advocates v Brinks Security Services Ltd (Miscellaneous Application E122 of 2023) [2025] KEELRC 253 (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/2025/253/eng@2025-01-31

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