Council - University of Embu v Kudheiha Workers (Miscellaneous Application E002 of 2023) [2024] KEELRC 201 (KLR)
The bottom line
#The Employment Court in Nyeri struck out a union's challenge to a taxed bill of costs because it used the wrong legal procedure instead of the required reference process.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC has jurisdiction to set aside a taxing master's ruling via the applicant's Notice of Motion
No; the only proper procedure to object to a taxing officer's decision is a reference under Paragraph 11 of the Advocates Remuneration Order 1962, and the procedure invoked by the applicant applies only to judicial decisions, not taxing officers' decisions
The court examined section 51(2) of the Advocates Act and Paragraph 11 of the Advocates Remuneration Order, which prescribes notice of objection within fourteen days, reasons from the taxing officer, and a chamber summons reference to a judge, with power to enlarge time. The applicant bypassed this clear procedure, invoking sections 3 and 12 of the ELRC Act and Article 159(2) of the Constitution. Applying Owners of the Motor Vessel 'Lilian S' v Caltex Oil, the court held jurisdiction is everything and downed its tools.
Whether Article 159(2) of the Constitution could cure the procedural defect
No; Article 159 and the oxygen principles were never meant to overthrow rules of procedure, per the Court of Appeal in Salat v IEBC
The applicant relied on Article 159(2) to salvage its procedurally defective motion. The court, bound by Nicholas Kiptoo Arap Korir Salat v IEBC, held that procedural rules and timelines serve fairness, certainty and even-handedness, and courts cannot aid in bending or circumventing them. The precedents were declared binding and portraits of good law, so the substantive merit of the application was never reached.
Legal principles established
#- A certificate of the taxing officer is final as to the amount of costs covered thereby unless set aside or altered by the court, per section 51(2) of the Advocates Act
- This court's jurisdiction over decisions of a taxing master is limited to an appeal by way of a reference under paragraph 11 of the Advocates Remuneration Order
- Article 159(2) of the Constitution cannot be used to cure procedural defects or circumvent rules of procedure
Court orders
#- 1.The applicant's Notice of Motion dated 4th August 2023 is struck out with costs
- Jurisdiction invoked
- Sections 3 and 12 of the Employment and Labour Relations Court Act; Articles 22 and 159(2) of the Constitution invoked by applicant; court found jurisdiction limited to a reference under Paragraph 11 of the Advocates (Remuneration) Order 1962 and section 51(2) of the Advocates Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Council - University of Embu v Kudheiha Workers (Miscellaneous Application E002 of 2023) [2024] KEELRC 201 (KLR)", Case Analysis (2024). Ruling on Notice of Motion dated 4th August 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/201/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.