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ELRCDismissedNot stated in the judgment

Mwaura & 11 others v Kenya Power & Lighting Company (Cause 2575 of 2016) [2025] KEELRC 1634 (KLR)

Employment and Labour Relations Court
29 May 2025
2,472 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Respondent/Applicant filed a Chamber Summons dated 19th November 2024 seeking to set aside the Deputy Registrar's ruling of 14th March 2023 taxing the Claimants' party and party Bill of Costs dated 19th August 2022 at Kshs. 12,091,290, contending inter alia that instruction fees of Kshs. 9,000,000 and getting up fees of Kshs. 3,000,000 were excessive given a judgment sum of Kshs. 135,298,934.11, which under the Advocates (Remuneration)(Amendment) Order 2014 would yield instruction fees of Kshs. 2,229,484 and getting up fees of Kshs. 743,161.33. The Applicant also challenged numerous drawing, perusal and attendance items and sought reassessment or remission to a different Taxing Officer. An earlier reference dated 30th March 2023 had been struck out on 9th February 2024 (Mwaure, J) for being filed before receipt of reasons, and an application for stay was dismissed on 22nd October 2024, the court finding the delay inordinate. The Claimants/Respondents opposed, arguing the taxed costs had been paid and disbursed on 5th November 2024, rendering the application moot and an abuse of process. Holding: Wasilwa, J found the issue raised in the fresh reference had already been litigated and determined in the ruling of 22nd October 2024 and was therefore res judicata. The reference was dismissed with no order of costs, signed and delivered virtually at Nairobi on 29th May 2025.

Questions the Court framed

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

  1. 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. 2.Whether the fact that the taxed costs have been paid and disbursed renders the application moot
  3. 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

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01

Res judicata regarding the reference

Holding

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

Reasoning

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.

p. 6
02

Mootness due to payment of taxed costs

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Applicant's reference (Chamber Summons dated 19th November 2024) is dismissed as res judicata
  2. 2.There shall be no order of costs

The bench

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

majority

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

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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

p. 6

Costs of the application

The court made no order of costs

p. 6

Costs

There shall be no order of costs - each party to bear their own costs.

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.

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.
p. 6Disposition - dismissal of reference as res judicata and 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.
p. 6Prior ruling on inordinate delay in filing reference
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
p. 3Mootness argument on payment of taxed costs

Issues in the judgment

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minor

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

minor

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

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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, "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.