William Kazungu Simbah v Kenya Airports Autthority [2021] KEELRC 2355 (KLR)
The bottom line
#A Kenyan court ruled that you cannot challenge a taxing officer's decision through review—you must file a reference under paragraph 11 of the Advocates Remuneration Order.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to review a taxing officer's decision
The court lacks jurisdiction to review the Deputy Registrar's ruling as taxing officer by way of section 80 review; the proper remedy is a reference under paragraph 11(2) of the Advocates Remuneration Order
Section 80 confers review power over the court's own orders, similar to Rule 33 of the ELRC Procedure Rules. The impugned order of 20th November 2020 was that of the Deputy Registrar sitting as taxing officer, not of a judge. Paragraph 11 prescribes objections and a reference to a judge within 14 days of receipt of reasons. No reference was before the court, so the applicant was improperly before the court.
Whether the court can write reasons for the taxing master
The court cannot write reasons on behalf of the taxing master for a ruling delivered under paragraph 11
The applicant sought an alternative order compelling the court to write reasons for the 5th March 2020 taxation ruling. The court held this function belongs to the taxing officer under paragraph 11(2), which requires the taxing officer to record and forward reasons to the objector; a judge on reference does not assume that role.
Error apparent on the face of the record
Even assuming the application was properly before the court, it would fail because the order sought to be reviewed was not an order of the court but of the Deputy Registrar
The applicant alleged the 20th November 2020 ruling was outside what the parties had argued and thus contained an error apparent on the face of the record. The court did not determine the merits of this allegation, resting dismissal on jurisdiction: review under Rule 33 applies only to the court's own orders, and no such order was the subject of the application.
Legal principles established
#- An application for review in the ELRC is governed by Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016 and must relate to an order or decision of the judge who issued it
- Objections to a taxing officer's decision lie by way of reference to a judge under paragraph 11 of the Advocates Remuneration Order, not by review under section 80 of the Civil Procedure Act
Court orders
#- 1.Application dated 30th November, 2020 dismissed
- 2.Each party to bear own costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act; paragraph 11 of the Advocates Remuneration Order; Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Kazungu Simbah v Kenya Airports Autthority [2021] KEELRC 2355 (KLR)", Case Analysis (2021). Application dated 30th November, 2020 (ELRC Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2355/eng@2021-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.