Mwaura & 11 others v Kenya Power & Lighting Company (Cause 2575 of 2016) [2025] KEELRC 1634 (KLR)
The bottom line
#A Kenyan court refused to reopen a Kshs. 12 million costs bill because the same challenge had already been decided, so the applicant lost.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Chamber Summons dated 19th November 2024 seeking to set aside the Taxing Officer's ruling of 14th March 2023 is res judicata, having regard to prior rulings of the court of 9th February 2024 and 22nd October 2024
- 2.Whether the fact that the taxed costs have been paid and disbursed renders the application moot
- 3.Whether the Taxing Officer erred in principle in taxing instruction fees at Kshs. 9,000,000 and getting up fees at Kshs. 3,000,000
Key legal issues
#Res judicata regarding the reference
The reference was dismissed as res judicata because the delay in filing a reference and the challenge to the taxation had already been determined by the court's ruling of 22nd October 2024
The court traced the history: the Applicant's first reference of 30th March 2023 was struck out on 9th February 2024 for having been filed before receipt of reasons. A subsequent application dated 26th June 2024 seeking stay of payment was dismissed on 22nd October 2024, the court (Mwaure, J) finding the delay inordinate and probably an afterthought. The present reference re-litigates the same issue and is therefore barred by res judicata.
Mootness due to payment of taxed costs
The court noted the Applicant's submission that payment in compliance with an order does not moot a reference, but this did not save the application as it failed on res judicata
The Claimants argued the application was moot as taxed costs had been paid and disbursed on 5th November 2024. The Applicant countered that payment was made only to comply with the order of 22nd October 2024 and would be recoverable if the reference succeeded. The court did not decide the mootness point, resting its determination on res judicata.
Legal principles established
#- Where a party has already litigated and lost an application challenging a taxation, a fresh reference on the same issue is res judicata
- Payment of taxed costs in compliance with a court order does not by itself render a reference moot
Court orders
#- 1.The Applicant's reference (Chamber Summons dated 19th November 2024) is dismissed as res judicata
- 2.There shall be no order of costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Reference against a taxing officer's decision under the Advocates (Remuneration) Order, within the Employment and Labour Relations Court's incidental jurisdiction
Relief refused
#Setting aside the Taxing Officer's decision of 14th March 2023 on the objected items and reassessment/re-taxation of the Bill of Costs
The issue had already been litigated and determined in the ruling of 22nd October 2024, making the reference res judicata
Costs of the application
The court made no order of costs
Costs
There shall be no order of costs - each party to bear their own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore my finding that the issue of the reference to this court has already been litigated upon and the court determining it vide the ruling of 22/10/2024 and so is res judicata and is therefore dismissed accordingly. There shall be no order of costs.
The court in its ruling found the failure on the part of the Respondent to file a reference following court's ruling on 9/2/2024 was inordinate and therefore unreasonable and probably an afterthought.
they only paid the taxed costs in order to comply with the order of 22nd October 2024 and there is no authority to support the Claimant's assertion that once taxed costs are paid a reference cannot be pursued
Issues in the judgment
#The judgment inconsistently names the parties' roles - the mover of the Chamber Summons is styled 'Respondent/Applicant' while the judgment also refers to 'Respondents' filing stay applications, creating ambiguity as to which party is which
The applicant is variously described as 'Respondent/Applicant' and 'Respondent' though the judgment itself notes the earlier ruling found the failure to file a reference was the Respondent's, while the reference is brought by the Respondent/Applicant - internally consistent but confusingly labelled
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaura & 11 others v Kenya Power & Lighting Company (Cause 2575 of 2016) [2025] KEELRC 1634 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1634/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.