Rotich & 4 others v Teacher Service Commission & 4 others (Petition E008 of 2024) [2026] KEELRC 2149 (KLR) (17 July 2026) (Ruling)

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU PETITION NO. E008 OF 2024 (Before Hon. Lady Justice Anna Ngibuini Mwaure) PAUL KIPCHUMBA ROTICH………………….…….1ST PETITIONER WILLIAM LENGOYIAP……………………..……….2ND PETITIONER ROBERT MIANO………………………………..…..3RD PETITIONER PETER OLUOCH…………………………………….4TH PETITIONER JENTRIX OGOLA………………………………..…..5TH PETITIONER VERSUS TEACHER SERVICE COMMISSION……………....1ST RESPONDENT ETHICS & ANTI-CORRUPTION COMMISSION…………………………….……....2ND RESPONDENT KENYA NATIONAL UNION OF TEACHERS......3RD RESPONDENT KENYA UNION OF POST PRIMARY EDUCATION TEACHER…………………………. 4TH RESPONDENT THE CEO, TEACHERS SERVICE COMMISSION……………………………………..5TH RESPONDENT NKU. PETITION NO. E008 OF 2024 RULING 1 | P A G E RULING Introduction 1. The 2nd Petitioner/Applicant filed a Notice of Motion dated 24th January 2026 seeking the following orders that: 1.This Honourable Court be pleased to grant the Applicants leave to file a Reference out of time challenging the taxation of costs by the Deputy Registrar. 2. There be stay of execution of the Certificate of Taxation with respect to the 4th Respondent’s Bill of Costs dated 2nd October, 2025 and the 1st and 5th Respondent’s Bill of Costs dated 10th September, 2025 in the matter pending hearing and determination of this Application. 3. Upon grant of leave, the Applicants’ Reference be deemed as duly filed upon payment of the requisite court fees. 4.This Honourable court re-calculates the amounts taxed and allowed by the Taxing Master with emphasis on the taxed items numbers 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 24, 25, 26, 27, 30, 33, 34, 35, 38, 41, 42, 43, 46, 49, 52, 53, 68, 59, 60, 61, 64, 65, 66, 67, 69, 70, NKU. PETITION NO. E008 OF 2024 RULING 2 | P A G E 71,72,73,74,75,76,79,80,81,82,83,84,86,87 ,88,89,90,91 and 94 5.The errors of calculation/computation contained in the Taxing Master’s decision be corrected. 6.Costs of this application be in the cause. 2 nd Petitioner/Applicant’s supporting affidavit 2. The application is supported by the 2nd Petitioner/Applicant, William Lengoyiap, sworn on even date as the application. 3. The 2nd Petitioner/Applicants avers that he is seeking leave to file a Reference out of time against the taxation of costs delivered on 19th November 2025, noting that judgment had earlier been delivered on 29th August 2025. 4. The 2nd Petitioner/Applicant argued their former advocates failed to oppose the Bill of Costs, misled them into believing the matter was being handled, and offered no representation, only for them to discover the taxed costs upon receiving a demand letter on 2nd December 2025. NKU. PETITION NO. E008 OF 2024 RULING 3 | P A G E 5. The 2nd Petitioner/Applicant contends the delay was inadvertent and not deliberate, and should not prejudice them. The 2nd Petitioner/Applicant further challenge the taxation, citing glaring mathematical errors and inconsistencies in the 4th Respondent’s demands of Kshs.240,000/= in one demand letter versus Kshs. 259,000/= in the decree application. 6. The 2nd Petitioner/Applicant specifically object to numerous items allowed by the Deputy Registrar, including items 4–18, 20–22, 24–27, 30, 33–35, 38, 41– 43, 46, 49, 52–53, 59–61, 64–67, 69–76, 79–84, and 86– 94, such as photocopying, despite service being electronic. 7. The 2nd Petitioner/Applicant also argues that, as members of the 4th Respondent union, it is unconstitutional under Article 50(2)(o) for the union to demand costs while simultaneously receiving union dues. 8. The 2nd Petitioner/Applicant urges the Court to grant a stay of execution and allow the Reference in the interest of justice, lest the Certificate of Taxation render their challenge nugatory. 4 th Respondent’s grounds of opposition NKU. PETITION NO. E008 OF 2024 RULING 4 | P A G E 9. The 4th Respondent opposed the application vide grounds of opposition dated 25th February 2026 on the following grounds that: 1.The Application is incompetent and fatally defective for failure to comply with the mandatory provisions of Rule 11(1) and (2) of the Advocates Remuneration Order. 2.No notice of objection to taxation was issued within fourteen (14) days of the Taxing Master’s ruling as required by law, thereby rendering the intended Reference a nullity. 3.The Application improperly seeks leave before compliance with the mandatory procedural steps under Rule 11, thus offending the statutory framework governing taxation references. 4.This Honourable Court lacks jurisdiction to “recalculate” or retax the Bill of Costs, as prayed under Prayer No. 4 of the application, the court’s role being limited to interference only upon proof of error of principle. 5.The Application improperly invokes Rule 33 of the ELRC(Procedure) Rules, which does not govern references from taxation under the Advocates Remuneration Order. 6.The Application is incurably defective for seeking substantive relief (recalculation of NKU. PETITION NO. E008 OF 2024 RULING 5 | P A G E taxed sums) without a competent reference before court. 7.The Application offends the doctrine of finality of taxation proceedings and constitutes an abuse of the court process. 8.The Application is brought in bad faith and is calculated to delay the conclusion of these proceedings. 9.The Application should be dismissed with costs to the 4th Respondent. 10.At the time of writing of this ruling, the 2nd Petitioner/Applicant did not file their respective written submission; only the 4th Respondent did. 4 th Respondent’s written submissions 11. The 4th Respondent submitted that the application is fatally defective for failure to comply with Rule 11 of the Advocates Remuneration Order, which requires a Notice of Objection within 14 days and a subsequent Reference, as emphasized in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board(Supra). 12.The Respondent also submitted that the court lacks jurisdiction to re-tax or recalculate costs, since a Judge NKU. PETITION NO. E008 OF 2024 RULING 6 | P A G E may only interfere where there is an error of principle or the award is manifestly excessive, citing the case of First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64 in support of that proposition. The 4th Respondent further argued that reliance on Rule 33 of the ELRC(Procedure) Rules is misplaced, as taxation is governed solely by the Advocates Act and Remuneration Order. Allegations of advocate error and computational mistakes are unsupported by evidence, and mere dissatisfaction with the outcome cannot justify interference. 13.The Respondent concludes that the application is an attempt to delay enforcement of a valid Certificate of Taxation and prays that it be dismissed with costs as incompetent, misconceived, and an abuse of process. Analysis and determination 14.The court has considered the application, supporting affidavit, grounds of opposition together with the submissions on record. The issue for determination is whether the court in its mandate to grant Applicant leave to file a Reference. 15. Rule 11 of the Advocates Remuneration Order provides as follows: NKU. PETITION NO. E008 OF 2024 RULING 7 | P A G E “Should any party object to the decision of the taxing officer, he may within fourteen days after the decision give notice in writing to the taxing officer of the items of taxation to which he objects. The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection. Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal. The High Court shall have power in its discretion by order to enlarge the time fixed by subparagraph (1) or subparagraph (2) for the taking of any step; application for such an order may be made by chamber summons upon giving to every other interested party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought to be enlarged may have already expired.” NKU. PETITION NO. E008 OF 2024 RULING 8 | P A G E 16. In County Government of Tana River v Miller and Company Advocates [2021] KEHC 5763 (KLR) the court cited the Court of Appeal case in Paul Wanjohi Mathenge V Duncan Gichane Mathenge [2013] eKLR; the Court of Appeal, while referring to other authorities, observed;- “The discretion under rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance. In Henry Mukora Mwangi V Charles Gichina Mwangi – Civil Application No. Nai 26 of 2004, this Court held: - “It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re- NKU. PETITION NO. E008 OF 2024 RULING 9 | P A G E emphasize this principle by referring to the decision in Mwangi V Kenya Airways Ltd [2003] KLR 486 in which this Court stated;- “Over the years, the Court has, of course, set out guidelines on what a single judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso V Rose Hellen Wangari Mwangi – Civil Application No Nai. 255 of 1997(unreported), the Court expressed itself thus: - “It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of the delay; secondly, the reasons for delay; thirdly(possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.” 17.The case before this court judgment was delivered on 29th August 2025 and bill of costs was taxed on 19th November 2025. NKU. PETITION NO. E008 OF 2024 RULING 10 | P A G E The Applicant then filed this application about two months later on 24th January 2026 seeking for leave to file reference out of time. The court concedes the Applicant filed the application for leave way out of time as the same should have asked the taxing officer for reasons of his decision within 14 days. 18. The court has discretionary power however to enlarge time to file the Reference and in so doing the court must give consideration to the period of delay. In this case, the delay is quite substantial but is not too excessive. Considering the Applicant says the delay was caused by his Counsel who had made him believe he was representing him in applying for the Reference the court will grant the litigant the benefit of doubt and allow him to file reference even though he is out of time. 19.In this case, the 2nd Petitioner/Applicant contended that his former advocates failed to oppose the Bill of Costs and specifically object to numerous items allowed by the Deputy Registrar, including items 4–18, 20–22, 24–27, 30, 33–35, 38, 41–43, 46, 49, 52–53, 59–61, 64–67, 69–76, 79–84, and 86–94**, such as NKU. PETITION NO. E008 OF 2024 RULING 11 | P A G E photocopying, despite service having been effected electronically. The 4th Respondent, however, maintained that the application is incurably defective for seeking recalculation of taxed sums without a competent reference before the Court. The 4th Respondent further argued that the application offends the doctrine of finality in taxation proceedings, constitutes an abuse of the Court process, and is brought in bad faith with the sole aim of delaying the conclusion of the matter. 20. The court is of the view that the 2nd Petitioner/Applicant has a right to challenge the taxed sum of the bill of cost delivered on 19th November 2025 and since his former advocates did not inform him what was happening, it is appropriate to challenge the same as the case belongs to the litigant and the litigant ought not to suffer from the actions of their advocate as set out in the case of Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR). 21. For a stay of execution, the court will rely on Order 42 Rule 6 of the Civil Procedure Act, which gives the principles as set out in County Government of NKU. PETITION NO. E008 OF 2024 RULING 12 | P A G E Tana River v Miller and Company Advocates(Supra) which provide as follow stay of execution can be granted:- “i. Where special circumstances of the case so require ii. There is proof of substantial loss that may otherwise result iii. There is substantial question of law to be adjudicated upon by the appellant court iv. Where, if the stay is not granted and, the appeal is successful, would be rendered nugatory. See for example;- Housing Finance Company of Kenya V Sharok Kher Mohamed Ali Hirji & another[2015] EKLR; Reliance Bank Ltd(In liquidation) V Noriake Investments Ltd; Rep V Kenya Anti- Corruption Commission & 2 Others[2009]KLR 31; Carter & Sons Ltd V Deposit Protection Fund Board & 2 others; Edward Kamau & Another V Hannah Mukui Gichuki & Another[2015]eKLR. The Court in RWW V EKW [2019] held that: - “The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of NKU. PETITION NO. E008 OF 2024 RULING 13 | P A G E appeal are safeguarded and the appeal, if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The Court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court, when granting the stay however, must balance the interests of the Appellant with those of the Respondent.” 22. Accordingly, having considered the pleadings, the affidavits and submissions as well as the applicable law, the court finds the application is merited and is granted as follows- a.Leave is granted to the 2nd Petitioner/Applicant to file their reference out of time within 14 days from the date of delivering this ruling. b.A stay of execution is granted to the 2nd Petitioner/Applicant of the certificate of taxation pending the hearing and determination of the reference. c. The prayers 3, 4 and 5 are declined. NKU. PETITION NO. E008 OF 2024 RULING 14 | P A G E d.Costs will be in the cause. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 17th Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of NKU. PETITION NO. E008 OF 2024 RULING 15 | P A G E Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE NKU. PETITION NO. E008 OF 2024 RULING 16 | P A G E