[2023] KEELRC 3345 (KLR)

Tallam & 41 others v County Government of Baringo & 6 others (Petition 10 of 2020) [2023] KEELRC 3345 (KLR) (21 December 2023) (Ruling)

Neutral citation: [2023] KEELRC 3345 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Eldoret

Petition 10 of 2020

MA Onyango, J

December 21, 2023

Between

Ezra Cherutich Tallam and 41 others

Petitioner

and

The County Government of Baringo and 6 others

Respondent

Ruling

1. The Petitioners herein filed the Petition dated 28th May 2020 against the Respondents seeking orders that:i.A declaration be issued that the Petitioners enjoyment of their rights and fundamental freedoms secured in the Bill of Rights under Articles 25,27,35,41,47 and 48 of the Constitution have been threatened and infringed or are threatened by the Respondent.ii.The declaration that the Petitioners are entitled to their full wages, emoluments, salaries as permanent and pensionable employees of the 1st Respondent in line with their various letters of appointment and respectively and for that purpose the Petitioners report to their report proper offices and perform all those functions an duties allocated to them pursuant to their various letters of appointment and/or contract and to continue in the service of the county government public service in accordance with the lawiii.An order compelling the 1st to 4th Respondent jointly and severally to confirm the petitioners as employees of the county government of Baringo, have their particulars included in the IIPD system and be issued with personal numbers.iv.An order directing the 1st to 4th Respondents to pay Kshs 19,124,192 being the unpaid dues owed to the Petitioners from time of employment until March 2020. v.A permanent injunction against the Respondent from victimization of the Petitioners herein by way of sudden transfer or unfair dismissal.vi.Cost of the petition to be borne by the 1st to 4th Respondentsvii.Any other order(s) as this Honorable court shall deem fit.

2. The Petition was opposed. The 1st to 4th Respondents filed Grounds of Opposition on 13th August 2020 where they averred inter alia;i.That the Petition is fatally defective, bad in law and an abuse of the process of the Honorable courtii.That the petition is hinged on discrimination and other constitutional violations which have not been particularly pleaded and particularized as per the doctrine in Anarita Karimi Njeru v Attorney Generaliii.That being an Employment Petition, the dispute puts the employer and the employees namely the County Public Service Board and the Petitioners. That the County Government of Baringo and the Governor are therefore unnecessary parties to the Petition and consequently, the petitioners are in abuse of the court process.iv.That employment matters are voluntary and the employer is at liberty to hire, promote and confirm employees based on merit and the court cannot be used to enforce such internal issues as the same would amount to superintending the Employment contract.v.That the Petitioners have not exhausted the internal mechanisms available and the petition has been filed prematurely thereby divesting this court of the requisite jurisdiction to hear and determine the petitionvi.That the Petitioners are on probation and unless terminated, a cause of action does not arise.

3. When the matter was in court on 24th January 2022 for mention for directions on hearing and disposal, Counsel Maiyo, representing the Respondents informed the court that the Respondents were keen on pursing an out of court settlement.

4. On the 16th May 2022, the counsels for the parties told the court that they wished to withdraw the matter subject to the issue of costs. The court recorded that parties had withdrawn the Petition by consent save for the issue of costs which advocates were to discuss and agree on.

5. The matter was scheduled for recording of final orders on 10th July 2023, but on the said date, parties intimated that they were unable to agree on costs. The court therefore directed the parties to file written submissions on the issue of costs. The Petitioners submissions were filed on 24th July 2023 and the Respondents submissions were filed 3rd August 2023.

The Petitioners’ submissions 6. Counsel for the Petitioners submitted that they were instructed by the Petitioners to act for them in the matter and took over the conduct of the suit from KWEW LLP Advocates. That it is not the Petitioners that are disputing that they instructed the firm of Limo & Njoroge Advocates to act for them as alleged by the Respondents.

7. It is submitted that instructions are a preserve of the advocate and their client, and it is not within the purview of the Respondents to dispute the existence of an advocate-client relationship of another party. Reliance was placed on the case of Ochieng Onyango Kibet & Ohaga Advocates v Adopt A Light Ltd (Misc. App. No. 729 of 2006).

8. The Petitioners’ counsel submitted that the Petitioners being the clients of the firm of Limo & Njoroge Advocates, have not in any way disputed that they instructed the firm to represent them. It is further submitted that the Petitioners have not in any way withdrawn such instructions at any given point, and that the Advocate-Client relationship subsists.

9. It is submitted that the Petitioners’ advocates deserve to be paid costs as they expended their expertise in representing the interests of their clients.

10. The Petitioners’ counsel submitted that the contention of lack of instructions by the Petitioners’ advocates albeit unfounded, is baseless and an attempt to run away from settling the matter as negotiated by the parties.

11. The court was also urged to issue orders to the Respondents to settle the costs.

12. The court was urged to find in the Petitioners’ advocates favour, that the Respondents do not have any locus to dispute the advocate- client relationship between the Petitioners and their advocates.

Respondents’ submissions 13. The Respondents on their part, submitted that under section 12(4) of the Employment and Labour Relations Court Act and in Rule 29 of the Rules (Employment and Labour Relations Court (Procedure)Rules 2016) gives the court the discretion to make orders as to costs as the court considers just.

14. It is submitted that the Civil Procedure Act, like the Industrial Court Act gives the court wide discretion on the award of costs.

15. The Respondents’ counsel submitted that in the present case, the event is a win-win situation and that the Respondents have reviewed the Petitioners terms to permanent and pensionable and the employment relationship will continue for the benefit of both parties. Reliance was placed on the case of Chelimo A. Esther, Martin A Lotte & 15 others V John Lonyamgapuo & 2 others (2018) eKLR, Lilian Karanja & 114 othersvCounty Secretary, County Government of Nakuru & 3 others (2017) eKLR, Joel Ndungu Bedan v Principal Secretary Ministry of Interior & Coordination of National Government & Another (2020) eKLR and Henry Thuranira Ruuti & 2 others v National Police Service& 3 others (2020) eKLR.

16. It is contended that the Respondents’ advocates did not in any way take issue with the locus of the Petitioners’ advocates at any time during the proceedings, and neither did they swear any affidavit to dispute the authority of the Petitioners’ advocates.

17. The court was urged to consider the continuing employment relationship and have each party to bear their own costs.

Determination 18. The only issue for determination is whether the Petitioners are entitled to costs.

19. Section 12(4) of the Employment and Labour Relations Court Act provides for costs as follows:In proceedings under this Act, the Court may, subject to the rules, make such orders as to costs as the Court considers just.

20. Further, rule 29 of the Employment and Labour Relations Court (Procedure) Rules, 2016 provides that:1. The Court shall be guided by section 12(4) of the Employment and Labour Relations Court Act and the Advocates (Remuneration) Order in awarding costs.2. The Court may order reasonable reimbursements of money spent by litigants in the course of litigation.3. Where a suit involves a liquidated amount that is claimed and specified at the time of filing a statement of claim and the Court orders that the amount claimed or part of the amount be paid to the claimant, it may, in addition to that order, direct that interest be paid on the liquidated amount awarded at Court rates.

21. In Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review application no 6 of 2014 court held as follows:“The issue of costs is at the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case."

22. According to Halsbury’s Laws of England; 4th Edition (Re-issue), {2010}, Vol.10. para 16:“The court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice."

23. In the instant case the Petitioners herein sued the Respondents seeking primarily to have their employment terms converted to permanent and pensionable terms. The parties reached agreement substantially granting the prayers of the Petitioners. As submitted by the Respondents at paragraphs 2 and 9 of the Respondents’ submissions, the suit was withdrawn after the Respondents granted the prayers in the petition.

24. From the record it is evident that it is the Respondents who sought the out of court settlement. On the date of recording the consent the petitioner’s counsel insisted on withdrawal with costs to the petitioners while the Respondent informed the court that the withdrawal was with no order as to costs.

25. The Petitioners having substantially been successful, are entitled to costs. This is because had the Respondent conceded to convert their employment terms to permanent and pensionable terms from the very beginning there would have been no necessity to file suit.

26. The suit having not gone to hearing, I will award the Petitioners only 50% of the costs to be agreed upon or taxed.

27. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 21ST DAY OF DECEMBER 2023MAUREEN ONYANGO,JUDGE