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ELRCPartially AllowedReference re Kisumu Misc Application No. E094 of 2023 (and analogous Causes)

Juliet Akinyi Dima t/a Juliet Dima & Associates Advocates v JRS Group Ltd (Miscellaneous Application E093 of 2023) [2024] KEELRC 882 (KLR)

Employment and Labour Relations Court
24 April 2024
RSRadido Stephen
1,685 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Deputy Registrar (Taxing Officer, F. Rashid) on 6 December 2023 struck out the advocate's advocate-client Bill of Costs dated 1 August 2023 as incompetent, holding that no formal retainer existed and interpreting paragraph 13(3) of the Advocates Remuneration Order, 1962 to bar the bill. Juliet Dima & Associates Advocates filed a Reference seeking to set aside that Ruling, have the bill taxed and a certificate of taxation issued. JRS Group Ltd opposed, arguing that no valid Notice of Objection or reasons of the Taxing Officer were annexed, rendering the Reference incompetent under paragraph 11(2) of the Order, and invoking the Salat decision against relaxation of rules. On 15 April 2024 the parties agreed, and the Court ordered, that the Ruling apply to numerous analogous miscellaneous applications. The Court held that because the Taxing Officer had struck out the bill without taxing any item and had given her reasons in the Ruling, no further reasons were required, so the missing annexure was not fatal. It found the letter of 20 November 2021 instructing the advocate to represent the Respondent established a retainer, making the Taxing Officer's contrary finding erroneous. On the merits, the Court held paragraph 13(3) simply requires filing a bill through a miscellaneous cause and bars claiming an instruction fee for presenting the bill; the advocate had complied, and the Taxing Officer fell into an error of principle. The References were allowed, the Taxing Officer directed to tax the bills afresh, with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the failure to annex a Notice of Objection and the Taxing Officer's reasons rendered the Reference incompetent
  2. 2.Whether the Taxing Officer erred in finding there was no formal retainer between the advocate and the Respondent
  3. 3.Whether the Taxing Officer misinterpreted paragraph 13(3) of the Advocates Remuneration Order, 1962 in striking out the Bill of Costs

Key legal issues

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01

Notice of Objection and reasons under paragraph 11(2) of the Advocates Remuneration Order

Holding

The Reference was competent despite the Notice of Objection not being annexed, as the Taxing Officer had given her reasons in the Ruling

Reasoning

The Taxing Officer struck out the bill rather than taxing any item and gave detailed reasons in her Ruling. The advocate wrote to her seeking explanation, which the Court treated as a formality. Since no taxation occurred, there was nothing further to explain. Failure to annex the Notice was therefore not fatal to the Reference.

p. 3
02

Formal retainer

Holding

The Taxing Officer erred in finding there was no formal retainer; the letter of 20 November 2021 instructing the advocate amounted to instructions

Reasoning

The advocate exhibited a letter dated 20 November 2021 in which the Respondent instructed her to take over the Causes and represent it. Consents to come on record in place of the advocate were also filed around July 2022. In the Court's view the letter gave explicit instructions, making the finding of no formal retainer erroneous.

p. 3
03

Interpretation of paragraph 13(3) of the Advocates Remuneration Order, 1962

Holding

The Taxing Officer misapplied the provision; filing the bill through a miscellaneous cause complied with it, and striking out the bill was an error of principle

Reasoning

Paragraph 13(3) requires a bill of costs to be filed in a miscellaneous cause but disentitles the advocate to an instruction fee for presenting it. The advocate filed her bill through miscellaneous applications and claimed no instruction fee for filing it. The Taxing Officer instead reasoned that filing would lead to taxation to infinity, a construction the Court rejected as an error of principle.

p. 4

Legal principles established

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  • An advocate-client bill of costs must be filed through a miscellaneous cause, and no instruction fee is claimable for presenting such a bill since it belongs to the advocate and is not presented at the client's behest
  • Where the Taxing Officer strikes out a bill without taxing any item and gives reasons in the ruling, it is unnecessary to furnish further reasons

Court orders

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  1. 1.The References are allowed
  2. 2.The Taxing Officer is directed to tax the Bill of Costs afresh
  3. 3.This Ruling applies to the listed Causes (Kisumu Misc Applications Nos. E014-E022 of 2023, E094-E098 of 2023 and E006-E022 of 2024)
  4. 4.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RS
majority

Wrote the judgment

On appeal from
Deputy Registrar (Taxing Officer)
Advocate-Client Bill of Costs dated August 1, 2023
Jurisdiction invoked
Reference under paragraph 11 of the Advocates Remuneration Order, 1962 against the Taxing Officer's Ruling
Consolidated with
Kisumu Misc Application No. E014 of 2023, Kisumu Misc Application No. E015 of 2023, Kisumu Misc Application No. E016 of 2023, Kisumu Misc Application No. E017 of 2023, Kisumu Misc Application No. E018 of 2023, Kisumu Misc Application No. E019 of 2023, Kisumu Misc Application No. E020 of 2023, Kisumu Misc Application No. E021 of 2023, Kisumu Misc Application No. E022 of 2023, Kisumu Misc Application No. E094 of 2023, Kisumu Misc Application No. E095 of 2023, Kisumu Misc Application No. E096 of 2023, Kisumu Misc Application No. E097 of 2023, Kisumu Misc Application No. E098 of 2023, Kisumu Misc Application No. E006 of 2024, Kisumu Misc Application No. E007 of 2024, Kisumu Misc Application No. E008 of 2024, Kisumu Misc Application No. E009 of 2024, Kisumu Misc Application No. E010 of 2024, Kisumu Misc Application No. E011 of 2024, Kisumu Misc Application No. E012 of 2024, Kisumu Misc Application No. E013 of 2024, Kisumu Misc Application No. E014 of 2024, Kisumu Misc Application No. E015 of 2024, Kisumu Misc Application No. E016 of 2024, Kisumu Misc Application No. E017 of 2024, Kisumu Misc Application No. E018 of 2024, Kisumu Misc Application No. E019 of 2024, Kisumu Misc Application No. E020 of 2024, Kisumu Misc Application No. E021 of 2024, Kisumu Misc Application No. E022 of 2024

Relief refused

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Costs of the application as a distinct award

Costs were only awarded in the cause, not to the applicant

p. 5

Costs

Costs in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The References are allowed, and the Taxing Oficer is directed to tax the Bill of Costs afresh.
p. 4Final orders
This Court's understanding of the provision is that an advocate client bill of costs shall be presented by the advocate through a miscellaneous application and that in presenting the bill for taxation, the advocate would not be entitled to claim instructions fees for presenting the bill.
p. 4Interpretation of paragraph 13(3) of the Advocates Remuneration Order
The Court fids that the Taxing Oficer fell into an error of principle in striking out the Bill of Costs.
p. 4Error of principle by the Taxing Officer
the letter gave explicit instructions to the advocate to represent the Respondent, and the conclusion by the Taxing Oficer that there was no formal retainer was erroneous
p. 3Formal retainer

Issues in the judgment

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minor

Respondent's Grounds of Opposition contain a typographical error rendering a ground partly unintelligible

minor

Recurring typographical errors ('Oficer', 'fids') in the judgment text

minor

Consolidation lists in paragraphs 7 and 32-34 do not fully match; paragraph 7 lists only the 2023 E014-E022 applications, while the Ruling's application list is longer

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, "Juliet Akinyi Dima t/a Juliet Dima & Associates Advocates v JRS Group Ltd (Miscellaneous Application E093 of 2023) [2024] KEELRC 882 (KLR)", Case Analysis (2024). Reference re Kisumu Misc Application No. E094 of 2023 (and analogous Causes). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/882/eng@2024-04-24

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