https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1451

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. 1964 OF 2014** **ZAINAB BINTIFUNDI KIWASI (Suing in her capacity as the personal representative of** **HARRY KITAO STEPHENS)…………………CLAIMANT/RESPONDENT** **VERSUS** **TPS EASTERN AFRICA LIMITED……...……RESPONDENT/APPLICANT** **RULING** 1. This ruling relates to the Respondent/Applicant’s Chamber Summons application dated 28th March, 2024, brought pursuant to Sections 1A, 1B, and 3A of the Civil Procedure Act and Paragraph 11(1) of the Advocates Remuneration Order. The Applicant seeks orders **THAT**: - 2. This Honourable court be pleased to set aside the ruling of the Taxing Master dated 15th March 2024 in regard to the Taxation of Respondents’ Bill of Costs dated 14th October 2021 in its entirety. 3. That the costs of the application be borne by the Respondent. 4. The application is supported by grounds on the face thereof and the affidavit of ***Terry Gachinga*** . The crux of the application is that on 15th March 2024, the taxing officer taxed the Respondent’s Bill of Costs at Kshs.381,809.00, and that the Court had already granted orders for stay of execution pending appeal, which, in its view, also operated to stay the taxation proceedings relating to the Bill of Costs. According to the Applicant, there is an appeal pending before the Court of Appeal. 5. The Applicant contends that the Bill of Costs raises a point of law that the taxing master failed to consider, thereby erring in how the bill was taxed. 6. The Applicant contends that it raised an objection during the taxation proceedings through its written submissions, arguing that the Bill of Costs ought not to have proceeded for taxation in light of the subsisting stay orders. It states further that the taxing master failed to consider or address the objection in the ruling delivered on 15th March 2024. Consequently, the Applicant seeks that the said ruling on the Bill of Costs dated 14th October 2021 be set aside in its entirety, maintaining that such orders would serve the interests of justice. 7. The Claimant/Respondent opposed the application vide a Replying Affidavit sworn by **Zainab Bintifundi Kiwasi** on 16th February, 2026. 1. The Claimant argues that the Respondent’s application, being a reference against the Taxing Master’s Ruling of 15th March 2024 on the Bill of Costs dated 14th October 2021, is fundamentally defective in both form and substance and is therefore incompetent. The Claimant further avers that challenges to a taxing officer’s decision are strictly governed by Rule 11 of the Advocates Remuneration Order, whose provisions are mandatory and must be complied with by any party seeking to object to or challenge a taxation ruling. 2. The Claimant further asserts that Rule 11(1) of the Advocates Remuneration Order obligates any party intending to file a reference against a taxation ruling to issue a notice within fourteen days to the taxing officer specifying the items objected to. She contends further that the Respondent filed the present reference without issuing the mandatory notice, thereby acting in contravention of Rule 11(1). The Claimant maintains that where a statute prescribes a specific procedure for seeking redress, such procedure must be strictly complied with. 3. The Claimant further avers that the reference herein is misconceived and founded on an erroneous interpretation of the law relating to stay of execution and its effect on taxation proceedings. According to the Claimant, taxation of costs is an ancillary process falling exclusively within the jurisdiction of the taxing officer and is separate and distinct from the substantive dispute between the parties. 4. She avers that the sole purpose of taxation is to ascertain the costs payable to the successful party, and owing to this independent nature, an order of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules does not extend to or operate as a stay of taxation proceedings. The Claimant maintains that courts have consistently affirmed that a stay pending appeal cannot bar taxation proceedings and, consequently, the Respondent’s argument that the taxing officer erred by taxing the Bill of Costs despite the existence of a stay order is legally untenable. 5. The Claimant further contends that the reference is frivolous, vexatious, and an abuse of the court process as it is solely premised on the mistaken belief that a stay of execution automatically halts taxation proceedings. 6. It is the Claimant/Respondet’s position that taxation is a discretionary exercise undertaken under the Advocates Remuneration Order, and a party challenging a taxation must demonstrate an error of principle, application of wrong legal principles, or that the amount awarded is so excessive as to amount to an error in principle. According to the Claimant, the Respondent has failed to demonstrate any such error on the part of the taxing officer and, therefore, the reference is unfounded and ought to be dismissed with costs. 7. Parties canvassed the application by way of written submissions, which have been duly considered. **Determination** 1. I have carefully considered the application, the replying affidavit in opposition, and the rival submissions. The following issues arise for determination:- 2. Whether the reference herein is competent under Paragraph 11 of the Advocates Remuneration Order; an 3. Whether the Applicant has established grounds to warrant interference with the Taxing Master’s decision delivered on 15th March 2024. 4. Paragraph 11 of the Advocates Remuneration Order, which governs references from taxing officers, provides that a party objecting to a taxation must, within fourteen days after the decision, give notice in writing to the taxing officer of the items objected to, whereupon the taxing officer records and forwards reasons for the decision on the impugned items. 5. Paragraph 11(2) further provides that the objector may file a reference before a Judge within fourteen days from receipt of the reasons. 1. The principles upon which a Judge may interfere with taxation are now well settled. In ***First American Bank of Kenya v Shah & Others, [2002] KEHC 1277 (KLR)***, the Court held that a Judge will only interfere with the exercise of discretion by a taxing officer where it is shown that the taxing officer acted on a wrong principle, failed to consider relevant factors, considered irrelevant factors, or where the award is so manifestly excessive or low as to amount to an error in principle. 2. The Applicant’s application is premised on the existence of orders of stay of execution pending appeal and, in the Applicant’s opinion, such orders automatically operate as a stay of taxation proceedings. 3. Taxation proceedings are, in my view, ancillary and distinct from execution proceedings. Their purpose is merely to ascertain the quantum of costs payable following a determination of the substantive dispute. 4. A stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, as correctly submitted by the Claimant/Respondent, ordinarily suspends enforcement or execution of a Judgment and decree, but does not, without express wording, bar the taxation process itself. 5. In ***Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & Another[2015] KECA 447 (KLR),*** the Court observed that stay of execution is concerned with preserving the subject matter pending appeal and does not necessarily halt all consequential or incidental proceedings unless expressly stated. 6. Likewise, courts have consistently held that taxation may proceed notwithstanding the existence of an appeal or stay orders, provided execution is not undertaken contrary to the subsisting stay. 7. The Applicant herein has not, in my view, demonstrated that the taxing officer applied any wrong principle of law, misapprehended the applicable schedule under the Advocates Remuneration Order, or awarded costs that were manifestly excessive so as to warrant interference by this Court. 8. The issue raised relates solely to the taxing officer’s decision to proceed with taxation despite the stay orders, which, in the Court’s view, did not bar taxation proceedings. 9. In the upshot, therefore, I find and hold that the present reference is incompetent for failure to comply with Paragraph 11 of the Advocates' Remuneration Order and is devoid of merit. 10. Accordingly, the Respondent/Applicant’s Chamber Summons application dated 28th March, 2024, is hereby dismissed with costs to the Claimant/Respondent. 11. It is so ordered. **SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 28TH DAY OF MAY, 2026.** **C. N. BAARI** **JUDGE** **Appearance:** Ms. Gachinga present for the Respondent/Applicant Mr. Ochieng present for the Claimant/Respondent Ms. Esther S- C/A