https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1915

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. E268 OF 2021** **KENYA CHEMICAL WORKERS** **UNION……………………………………...CLAIMANT/RESPONDENT** **VERSUS** **IDEAL APPLIANCES LIMITED……...…………………..…RESPONDENT** **RULING** 1. This ruling relates to the Claimant/Applicant’s Motion application dated 9th April, 2026, brought pursuant to *Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024*. The Applicant seeks orders: - 2. Spent 3. Spent 4. .THAT**,** the Honourable Court do hereby review the Ruling by the taxing master delivered on 30th day of March, 2026 by only allowing item number (19) as taxed in the said Ruling of Kshs. 7,100/- by doubling the same to Kshs. 14,200/= in line with the Honourable Court's Ruling delivered on the 15th day of May, 2025. 5. THAT, in the alternative the Honourable Court to refer the same (party - to - party Bill of costs) darted 24th day of February, 2023 to any other taxing officer other than the one who delivered the taxation Ruling delivered on the 30th day of March 2026, in consideration of the Honourable Court Ruling delivered on the 15th day of May, 2025. 6. Spent 7. The application is supported by grounds on the face thereof and the affidavit of ***Wycliffe A. Nyamwata,*** sworn on 9th April, 2026. 8. The Claimant/Applicant contends that it is dissatisfied with the Taxing Officer's ruling delivered on 30th March 2026 and seeks its review, arguing that it is inconsistent with the Court's earlier rulings reinstating the suit for hearing on its merits. 9. It argues that the taxation ruling undermines the decisions of the Court that reinstated the main suit and should therefore be set aside or reviewed. It is the Applicant’s further contention that only Item No. 19 of the Respondent's party-and-party Bill of Costs, taxed at Kshs. 7,100, should be upheld and doubled in accordance with the Court's ruling of 15th May 2025, relating to the two occasions when the Claimant failed to attend court. 10. The Applicant states that since the main claim has been reinstated and has a high likelihood of success, taxation of all other items should await the final determination of the suit. It avers that the taxation ruling wrongly creates the impression that the Claimant has lost the entire claim, despite the Court having reinstated it for hearing on the merits. 11. It is the Applicant’s further assertion that all taxed items, except Item No. 19, should be deferred until the substantive claim is determined on the premise that the Respondent was aware of the Court's reinstatement orders, but failed to disclose to the Taxing Officer during taxation. 1. It avers that unless the taxation ruling is set aside, it is likely to be prejudiced and to improperly influence the outcome of the pending main suit. 2. The Respondent opposed the application vide a Replying affidavit sworn by ESMAIL L. BACHAN on 22nd April, 2026. The Respondent contends that the Applicant ought to have filed a reference under Rule 11 of the Advocates (Remuneration) Order, which is the proper procedure for challenging a Taxing Master's decision, rather than relying on an inapplicable provision of law. 3. The Respondent states that in a ruling delivered on 15th May 2025, Hon. Justice Nduma Nderi reinstated the suit but expressly directed that the Respondent's Bill of Costs be taxed before the suit was heard and determined. The Respondent further states that after the matter was reallocated, Hon. Justice Stephen Radido, in a ruling delivered on 27th January 2026, reaffirmed that the Respondent's Bill of Costs should be taxed by the Taxing Officer, thereby confirming that the taxation was undertaken pursuant to valid court orders. 4. The Respondent argues that the taxation of its Bill of Costs was lawfully undertaken pursuant to the rulings of 15th May 2025 and 27th January 2026, which expressly directed that the Bill be taxed before the hearing of the main suit. It avers that the Taxing Officer acted within those directions and in accordance with the Advocates (Remuneration) Order. 5. The Respondent maintains that the Applicant's contention that only court attendance costs should have been allowed is contrary to the Court's express orders directing taxation of the entire Bill. It further submits that the ruling of 27th January 2026 has not been appealed and therefore remains binding. 6. The Respondent finally contends that taxation of costs does not determine the merits of the claim or prejudice the pending suit, which remains active, as demonstrated by the Court's directions for filing of trial bundles. It therefore urges the Court to dismiss the application. 7. Parties orally urged the application on 11th May, 2026, where they reiterated their respective positions enumerated herein. **Determination** 1. The issues that arise for determination are:- 2. Whether the present application is competent. 3. Whether the Applicant has established grounds to warrant interference with the Taxing Officer's ruling delivered on 30th March, 2026. 4. The Applicant invoked Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024, in seeking a review of the Taxing Officer's ruling. The Respondent has raised an objection to the competence of the application, contending that the Applicant ought to have proceeded by way of a reference under Rule 11 of the Advocates (Remuneration) Order. 5. A decision of a Taxing Officer is not challenged through an application for review under the Civil Procedure framework or the Employment and Labour Relations Court (Procedure) Rules, but through the procedure prescribed under Rule 11 of the Advocates (Remuneration) Order, which provides for the filing of a reference to a Judge after the Taxing Officer has rendered reasons for the impugned taxation. 6. The Court of Appeal in ***Machira & Co. Advocates v Arthur K. Magugu & Another [2012] KECA 245 (KLR)***, affirmed that a Judge's jurisdiction to interfere with a taxation arises only through a reference brought under Rule 11 of the Advocates (Remuneration) Order. 7. The Applicant herein has neither invoked nor complied with Rule 11 of the Advocates (Remuneration) Order. Instead, it seeks a review under Rule 74 of the Employment and Labour Relations Court (Procedure) Rules, 2024. Rule 74 governs review of judgments, rulings, and orders of the Court and cannot be invoked to challenge a taxation undertaken by a Taxing Officer pursuant to the Advocates (Remuneration) Order. The Taxing Officer exercises a special statutory jurisdiction distinct from the Court's review jurisdiction under Rule 74. 8. As a general rule, however, citing the wrong provision of the law is not, by itself, fatal to an application, provided that the court has jurisdiction over the matter, the application discloses a recognizable cause of action or relief, the Respondent is not prejudiced, and there exists another legal provision under which the application could properly have been brought. 9. The Court of Appeal in ***D.T. Dobie & Company (Kenya) Ltd v Muchina [1980] KECA 3 (KLR),***emphasized that procedural rules should facilitate, rather than hinder, substantive justice, and that courts should avoid striking out proceedings unless they are plainly unsustainable. 10. This approach is reinforced by Article 159(2)(d) of the Constitution, which requires courts to administer justice without undue regard to procedural technicalities. 11. This court is thus satisfied that, despite the wrong citation of the applicable law, the Court retains the jurisdiction to determine the application on the merits. 12. Looking at the ruling of Hon. Justice Nduma delivered on 15th May, 2025, the judge stated:- ***“The Court frowns at the conduct by the Claimant in this matter, but however reinstates the suit to be heard on the merits on condition that the thrown away costs incurred by the Respondent on the two occasions the Claimants failed to attend open court hearing on 20/2/2023 and 19/10/2023 be met by the Claimant union at a rate to be taxed by the taxing master before the suit is heard and determined.”*** 1. From the foregoing excerpt, **"thrown away costs incurred on the two occasions"** clearly qualify what the taxing master was to tax. It does **not** expressly direct taxation of the entire party-and-party Bill of Costs, rather, it directs taxation of the **thrown away costs** occasioned by the Claimant's non-attendance on the two hearing dates. 2. In the premise, the Taxing Master ought to have confined taxation to the thrown away costs arising from those two aborted hearings, rather than taxing the entire Bill of Costs. 3. In the end, I deem it proper to set aside the ruling of the Taxing Master delivered on 30th March, 2026, save for item number 19, which addressed attendance for the hearings and which was taxed at Ksh.7,100. The Claimant will thus bear this cost for two attendances in accordance with the ruling of 15th May, 2025. 4. It is so ordered. **SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026.** **C. N. BAARI** **JUDGE** **Appearance:** Mr. Araka present for the Claimant/Applicant Mr. Tony Odera present for the Respondent Ms. Esther S- C/A