https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2355

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **ELRC APPEAL NO. E002 OF 2025** *(Before Hon. Lady Justice Maureen Onyango)* **PATRIOTIC GROUP OF COMPANIES LTD …............. APPELLANT** **VERSUS** **JIMMY KALAKATE MUKULOH ………………..……... RESPONDENT** **RULING NO. 2** 1. The application before me for determination is a chamber summons dated 15th December, 2025 filed by the Respondent. the application is made under Rule 11(2) of the Advocates Remuneration Order and seeks the following prayers orders that: 2. The Honourable Court be pleased to set aside and or vary the decision of the Taxing Officer vide her ruling delivered on 21st November 2025 insofar as the same relates to the taxation of item 1 of the Respondent’s Party and Party bill of costs dated 9th July 2025. 3. This Honourable Court be pleased to re-tax or remit for fresh taxation item 1 of the Respondent’s Party and Party bill of costs dated 9th July 2025. 4. Costs be provided for. 5. The application is premised on the grounds set out on the face thereof as follows: 6. The Taxing Officer erred in law in failing to apply the principles applicable in taxation thereby arriving at a wrong decision, particularly on item 1 of the bill of costs. 7. The Taxing Officer erred in law in failing to ascertain the value of the subject matter in the suit and therefore applied the wrong principles in item 1 of the Respondent's Party and Party bill of costs dated 9th July 2025 8. The Taxing Officer erred in law by making a superficial and general finding that there was no appeal in the instant case. 9. The Taxing Officer erred in law in failing to exercise her discretion judiciously in respect to taxation of the party and party bill of costs and specifically to items 1 thereof. 10. the Taxing officer erred in law and fact in failing to award the Respondent item 1 of the bill of costs as to amount to erroneous exercise of direction. 11. The application is further supported by the affidavit of BETHUEL 12. KAPERE, counsel for the Applicant having the conduct of the case in which he largely reiterates the grounds in support of the application. 13. The Respondent appears not to have filed any reply to the application nor filed submissions. There is no evidence that the application was ever served upon the Respondent. the court record shows the Respondent did not attend court on the dates the application came up for consideration. 14. The application was disposed of by way of written submissions. The Respondent/Applicant’s submissions are dated 18th May, 2026. **Determination** 1. I have carefully considered the Application, Supporting Affidavit, as well as the submissions on record. 2. The genesis of the application herein is the dismissal of the application dated 23rd January 2025 wherein the Applicant who was the Respondent in the appeal was granted costs. In the said ruling the court made orders as follows at paragraphs 34, 35 and 36 of the ruling: 3. *Consequently, the application dated 23rd January, 2025 is dismissed with costs to the Respondent.* 4. *The orders herein inevitably mean that the appeal which was filed out of time, cannot stand. It is struck out. The applicant will pay the Respondent’s costs.* 5. *Having reached the conclusion herein above, the application filed by the Respondent is superfluous and this court need not consider the same.* 6. The appeal was filed together with an application which sought orders as follows: 7. *That this Honourable Court be pleased to certify this application as urgent and the same be dispensed with in the first instance.* 8. *That the Applicant be granted leave to file appeal out of time* *and the annexed draft Memorandum of Appeal be deemed as duly filed and served upon payment of the requisite court fees.* 1. *That this Honorable Court do issue a temporary injunction against the 2nd Respondent from taking and auctioning the Applicant’s proclaimed goods as per the proclamation dated 17.01.2025 pending the hearing and determination of this application.* 2. *That the Honourable Court stays the execution of the judgment issued on 18th October, 2023 pending the hearing and determination of this application.* 3. *That the Honourable Court stays the execution of the judgment issued on 18th October, 2023 pending the hearing and determination of this Appeal.* 4. *That costs be provided for.* 5. As indicated in prayer (ii) of the application, the Appellant sought leave to file the appeal out of time. The only reason why this was done is because the Employment and Labour Relations Court (Procedure) Rules, 2024 provides at rule 21 that: *(1) Where an application for stay of execution pending appeal has been lodged, the applicant shall, in the supporting affidavit, declare whether a similar application has been filed in any other court.* *(2) An application for stay of execution pending appeal shall be filed in the appeal file.* 1. The appeal was struck out without being admitted. There was thus no appeal filed in actual fact. 2. I therefore find that no appeal was filed that the Respondent/Applicant could have given instructions to counsel to defend. What had been filed was an application to admit the appeal filed out of time. I therefore agree with the decision of the Taxing Officer in taxing off the instructions fee for the appeal on grounds that “***there was no appeal in this case***”. 3. I thus find no merit in the Applicants chamber summons dated 15th December, 2025. The same is accordingly dismissed. Each party shall bear its costs of the application. **DATED, SIGNED AND DELIVERED VIRTUALLY ON** **THIS 30TH DAY OF JULY 2026** **MAUREEN ONYANGO** **JUDGE**