https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2237

Obiero t/a C Obiero & Associates Advocates v Speaker, County Assembly of Migori & 2 others (Miscellaneous Application E077 of 2025) [2026] KEELRC 2237 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2237 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Miscellaneous Application E077 of 2025 Nzioki wa Makau, J July 31, 2026 Between Clifford Otieno Obiero t/a C Obiero & Associates Advocates Applicant and Speaker, County Assembly of Migori 1st Respondent Migori County Assembly Service Board 2nd Respondent clerk, county Asembly of Migori 3rd Respondent Ruling 1.Through an application dated 9th February 2026, the Applicant seeks to convert the certificate of taxation issued on 21st January 2026 in to a decree and judgment of this court. He also seeks costs of the suit. 2.The applicant contends that pursuant to the taxation of its bill of costs dated 26th August 2025 at Kshs. 248,302/-, the Respondent only remitted 2% withholding tax to Kenya Revenue Authority creating the false impression that payment had been made in full which was not the case. Relying on the Respondent’s deceptive action, he contends that he has been exposed to severe tax penalties because the Kenya Revenue Authority believes that payment has been made in full and it is therefore now demanding VAT from him. 3.In response to the application a replying affidavit sworn by Mr. Mboya Brian was filed. The Respondents contend that the Applicant had filed numerous bills of costs in various courts many of which were subject to account reconciliation to ascertain whether payment had been made. They contend that by the time this ruling was delivered they were hopeful that reconciliation would have been complete. In any case they maintain that payment has been made as evinced by the 2% withholding tax deducted by KRA. 4.The application was canvassed by way of written submissions. Applicant’s Submissions 5.The Applicant submits that a Certificate of Taxation is prima facie evidence of debt and is final as to the amount therein unless set aside. In the absence of a reference, a review or appeal he asserts that the certificate remains binding. The Applicant further submits that the Respondents’ application dated 27th April 2026 seeking extension of time cannot challenge the taxation because it does not address the merits of the bill of costs. In view of the delay tactics employed by the Respondents including failing to reply to the application despite being indulged on 23rd March 2026, the Applicant urges the Court to allow the application on the strength of section 51(2) of the Advocates Act. Respondents’ Submissions 6.The Respondents contend that the application is a non-starter because the Applicant failed to comply with section 48(1) of the Advocates Act, which prohibits recovery proceedings for advocate’s costs before the expiry of one month after delivery or service of a signed bill of costs upon the client. They maintain that the bill of costs was not served hence they were not notified of the costs. 7.The foregoing notwithstanding, they submit that the Applicant has already been paid through RTGS hence allowing the application would result in unjust enrichment. Reliance is placed on Madhupaper International Ltd & another v Kenya Commercial Bank Ltd & 2 others [2003] eKLR, where the Court held that the doctrine of unjust enrichment prevents a person from retaining a benefit which, in justice and equity, ought to be restored. The Respondents also rely on Saleh bin Ghaleb v Hussein al Qu’aiti [1957] EA 55, where the Court recognised restitution as a remedy against unjust enrichment. They maintain that the Applicant’s own correspondence with the Kenya Revenue Authority regarding tax on income received from the Respondents confirms receipt of payment, and that requiring a further payment would amount to double recovery. Accordingly, they urge the court to dismiss the application. Disposition 8.The Applicant has an application seeking to covert the bill of costs duly taxed by the Taxing Master of this Court to be converted into a decree of this Court. The Respondent in opposition asserts the Applicant has been paid various sums and that there is an ongoing reconciliation. This is not sufficient to halt the process of conversion. However, the Applicant will have to take accounts with the Respondent this will help the parties resolve the longstanding disputes on fees that have coloured the Court cause list since 2024. The Application is granted albeit with no order as to costs.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY 2026NZIOKI wa MAKAU, MCIArb.JUDGE