[2024] KEELRC 863 (KLR)
The court found that the applicant, Lister Auctioneers, was not a party to the proceedings and therefore lacked the competence to file a Party to Party Bill of Costs. Furthermore, the applicant failed to provide a satisfactory explanation for the delay in filing the Reference against the Taxing Officer's decision,...
Source-derived case information.
- Citation
- [2024] KEELRC 863 (KLR)
- Parties
- Applicant: Rono Cheruiyot; Applicant: Paul Kiprono; Applicant: Kirui Edward Kiplagat; Applicant: Hillary K Bor; Applicant: Dennis Kibet; Applicant: Daniel Madafu; Applicant: George Gitau Chuma; Applicant: Edward Kemei; Applicant: Peter Mwangi Njagua; Applicant: Francis Mutuku Mutua; Applicant: Kipkorir Koech; Applicant: Benard Kipkoech; Applicant: Erick Kipsang Kirui; Applicant: Reuben Kibet Kosgei; Applicant: Kiprono Fredrick Koech; Applicant: Catherine Kimani Kirera; Respondent: SBI International Holdings (AG) Ltd; Applicant: Lister Auctioneers
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 141 of 2017
- Procedural Posture
- Chamber Summons / Ruling on Application to Enlarge Time and Set Aside Taxing Master's Decision
- Outcome
- application dismissed with costs to the respondent
- Judges
- S Radido
- Legal Topics
- Taxation of Costs, Party to Party Costs, Reference Out of Time, Discretion to Extend Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rono Cheruiyot
Applicant
Paul Kiprono
Applicant
Kirui Edward Kiplagat
Applicant
Hillary K Bor
Applicant
Dennis Kibet
Applicant
Daniel Madafu
Applicant
George Gitau Chuma
Applicant
Edward Kemei
Applicant
Peter Mwangi Njagua
Applicant
Francis Mutuku Mutua
Applicant
Kipkorir Koech
Applicant
Benard Kipkoech
Applicant
Erick Kipsang Kirui
Applicant
Reuben Kibet Kosgei
Applicant
Kiprono Fredrick Koech
Applicant
Catherine Kimani Kirera
Applicant
SBI International Holdings (AG) Ltd
Respondent
Lister Auctioneers
Applicant
Procedural Posture
Chamber Summons / Ruling on Application to Enlarge Time and Set Aside Taxing Master's Decision
Legal Issues
- 1 Whether the applicant, not being a party to the proceedings, was competent to file a Party to Party Bill of Costs.
- 2 Whether the delay in filing the Reference against the Taxing Officer's decision was sufficiently explained to warrant extension of time.
- 3 Whether the Taxing Officer erred in principle in rejecting the Bill of Costs.
Ratio Decidendi
The court found that the applicant, Lister Auctioneers, was not a party to the proceedings and therefore lacked the competence to file a Party to Party Bill of Costs. Furthermore, the applicant failed to provide a satisfactory explanation for the delay in filing the Reference against the Taxing Officer's decision, as the reasons advanced—such as being away from the office for the festive season—were vague and unsupported by evidence. The applicant also failed to comply with procedural requirements, including timely objection and service of the application. Consequently, the court declined to exercise its discretion to extend time and dismissed the Chamber Summons with costs to the...
Court Disposition
application dismissed with costs to the respondent
Orders
- The Chamber Summons dated 15 January 2024 is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
59 paragraphs
Cheruiyot & 15 others v SBI International Holdings (AG) Ltd (Cause 141 of 2017) [2024] KEELRC 863 (KLR) (20 March 2024) (Ruling)
Neutral citation: [2024] KEELRC 863 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause 141 of 2017
S Radido, J
March 20, 2024
Between
Rono Cheruiyot
1st Claimant
Paul Kiprono
2nd Claimant
Kirui Edward Kiplagat
3rd Claimant
Hillary K Bor
4th Claimant
Dennis Kibet
5th Claimant
Daniel Madafu
6th Claimant
George Gitau Chuma
7th Claimant
Edward Kemei
8th Claimant
Peter Mwangi Njagua
9th Claimant
Francis Mutuku Mutua
10th Claimant
Kipkorir Koech
11th Claimant
Benard Kipkoech
12th Claimant
Erick Kipsang Kirui
13th Claimant
Reuben Kibet Kosgei
14th Claimant
Kiprono Fredrick Koech
15th Claimant
Catherine Kimani Kirera
16th Claimant
and
SBI International Holdings (AG) Ltd
Respondent
Ruling
1. Lister Auctioneers (the applicant) lodged a Party to Party Bill of Costs with the Court on 16 February 2021 seeking the taxation of costs said to have been allowed after the determination of a Motion dated 8 October 2020.
2. When served, SBI International Holdings (AG) Ltd (the Respondent) raised a Notice of Preliminary Objection dated 17 February 2021.
3. Upon hearing the Objection, the Taxing Officer delivered a Ruling on 31 October 2023, in which she upheld the Notice of Preliminary Objection on the ground that the applicant auctioneer was not competent to file a Party to Party Bill of Costs as he was not a party to the proceedings.
4. On 19 January 2024, the applicant filed a Chamber Summons seeking orders:i.That the time for lodging a Reference as against the decision of the Taxing Master dated 31st October 2023 be enlarged and upon the grant of the said enlargement, the Reference herein be deemed as validated.ii.That the decision of the Taxing Master dated 31st October 2023, be set aside, an order be made that the applicant’s bill of costs be reinstated and be taxed by the Taxing Master.iii.That the costs of this Reference be awarded to the Respondent namely Lister Auctioneers.
5. The main grounds advanced in support of the Motion were that the delay to bring a Reference was caused by the time taken to obtain a copy of the Ruling and get instructions (sent on 22 November 2023), and that the Taxing Officer had committed an error of principle in rejecting the Bill of Costs.
6. The applicant attributed the failure to give instructions to the fact that she was away from the office due to the festive season.
7. When the Summons came up on 22 February 2024, the Claimants and Respondents were absent. The Court allowed the applicant to make brief oral submissions.
8. The Court has considered the Summons, affidavits and submissions and come to the view that the orders sought should be declined for the reasons that follow.
9. One, the applicant was present on 4 October 2023, when the Taxing Officer fixed the Ruling for 31 October 2023. The applicant failed to attend the delivery of the Ruling and no explanation has been given for the failure to attend the Court.
10. Two, the applicant's advocate has not explained why it took him up to 22 November 2023 to seek instructions from the applicant after the delivery of the Ruling.
11. Three, apart from making a vague reference to have taken a break from the office for the festive season, the applicant has not disclosed when she took a break or closed her offices. Just for the record, the Courts took a break on or around 21 December 2023.
12. Fourth, the applicant was expected to file an objection within 14 days of the Ruling. There is nothing on record to suggest that the applicant filed the objection.
13. Lastly, despite the directions by the Deputy Registrar on 21 January 2024 that the application be served, there is no evidence on record that the applicant served the other parties.
Conclusion and Orders 14. Considering the above, the Court declines to exercise its discretion in favour of the applicant and the Chamber Summons dated 15 January 2024 is dismissed with costs to the Respondent.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 20TH DAY OF MARCH 2024. Radido Stephen, MCIArbJudgeAppearancesFor Claimants did not participateFor Respondent Prof Albert Mumma & Co. AdvocatesFor applicant Wambua Kigamwa & Co. AdvocatesCourt Assistant Chemwolo