https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1585

V Chokaa & Co. Advocates v Essajee Amijee (EA) Ltd (Miscellaneous Application E060 of 2024) [2026] KEELRC 1585 (KLR) (25 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1585 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E060 of 2024 ON Makau, J May 25, 2026 IN THE MATTER OF: THE ADVOCATES ACT CAP 16 LAWS OF KENYA AND IN THE MATTER OF: THE TAXATION OF COSTS BETWEEN ADVOCATES AND CLIENT AND IN THE MATTER OF: MILIMANI CHIEF MAGISTRATE'S ELRC CAUSE NO. E1867 OF 2023 Between V Chokaa & Co. Advocates Applicant and Essajee Amijee (Ea) Ltd Respondent Ruling 1.This Ruling relates to the Respondent's objection to the Applicant's Re-Re-Amended Notice of Motion dated 13th October 2025 brought under Article 159(2) of the Constitution, Rule 45, 47, and 74 of the ELRC Procedure Rules, section 1A, 1B and 80 of the Civil Procedure Act, and Orders 45 and 51 rule 1 of the Civil Procedure Rules. The motion seeks the following orders:-a.That judgment be entered for the Applicant as against the Respondent in the sum of Kshs. 67,500/= in accordance with the Certificate of Taxation of Costs.b.That the Respondent to pay the Applicant the said sum together with interest thereon at 14% per annum with effect from 27th February 2024 until payment in full.c.Costs of this application. 2.The motion was not supported by any affidavit but the Respondent opposed the Motion through a Replying Affidavit sworn on 13th February 2026. The Applicant responded by filing a Further Affidavit sworn on 16th February 2026. Thereafter the motion was disposed of by written submissions Background Facts 3.The Applicant, V. Chokaa & Co. Advocates, filed an Advocates Client Bill of Costs dated 27th February 2024 against the Respondent, Essajee Amijee (EA) Ltd arising from Milimani Chief Magistrate's ELRC Cause No. E1867 of 2023. 4.The Bill of Costs was initially taxed by the Deputy Registrar, Hon. D. O. Mbeja on 17th July 2024 at Kshs. 72,450/=. The Applicant thereafter filed a Notice of Motion dated 2nd October 2024 seeking judgment in that sum. 5.Before that Motion could be heard, the Respondent filed a Chamber Summons application dated 16th October 2024 under Rule 11(2) of the Advocates Remuneration Order seeking to set aside the Certificate of Taxation dated 26th July 2024 and for enlargement of time to file a reference. The Applicant subsequently filed an Amended Notice of Motion dated 29th October 2024 claiming interest on the taxed costs at 14% per annum from 27th February 2024. 6.The Respondent filed another Chamber Summons application dated 5th December 2024 (a reference) under paragraph 11(2) of the Advocates Remuneration Order seeking review and/or re-assessment of the ruling on taxation by Hon. D. O. Mbeja made on 17th July 2024. By a Ruling delivered on 27th February 2025, Lady Justice Linet Ndolo set aside the ruling on taxation by Hon. D. O. Mbeja and ordered the Bill of Costs dated 27th February 2024 to be taxed afresh. 7.On 23rd May 2025, the Deputy Registrar, Hon. Aziza Ajwang, re-taxed the Bill of Costs and delivered a ruling. In that ruling, the Deputy Registrar stated at paragraph 2 and 3 as follows: -“2.The Respondent objects to the taxation stating that the Applicant has failed to consider sums already paid to the Applicant by the Respondent amounting to Kshs. 760,000/= in respect of 11 matters that were handled by the respondent. The subject case is not listed as one of those matters and the Respondent acknowledges as much in his submissions.3.Having established that the subject case was not among those which legal fees had been paid for I will proceed to tax the Bill as herein below.” 8.The Deputy Registrar subsequently taxed the Bill at Kshs. 67,500/= and a Certificate of Taxation was issued on 9th June 2025. The Respondent thereafter filed an application dated 11th June 2025 before the same Deputy Registrar seeking review of the taxation decision. By a ruling delivered on 2nd October 2025, the Deputy Registrar dismissed the said application, holding that: -“The procedure for applying for a reference is clear and the applicant ought to have followed the same. I therefore find that the application is incompetent before me and I proceed to dismiss the same. Each party to bear its own costs.” 9.The Applicant thereafter filed the instant Re-Re-Amended Notice of Motion dated. The Respondent opposes the said Re-Re Amended Motion through a Replying Affidavit sworn on 13th February 2026 by one Athman Wambua, the Human Resource Manager of the Respondent. The Re-Re Amended Motion was disposed of by written submissions. Issues for Determination 10.Having considered the Re-Re-Amended Notice of Motion dated 13th October 2025, the Replying Affidavits and the written Submissions by the parties the following issues arise for determination: -a.Whether the Re-Re-Amended Notice of Motion dated 13th October 2025 is competent in law.b.Whether the primary Notice of Motion dated 2nd October 2024 is overtaken by events.c.Whether the Applicant is entitled to the claim for interest at 14% per annum from 27th February 2024.d.Whether granting the application would result in unjust enrichment of the Applicant.e.Whether the application is an abuse of the court process. The Re-Re-Amended Notice of Motion dated 13th October 2025 11.The Respondent contends that the Re-Re-Amended Notice of Motion dated 13th October 2025 is incompetent because the Civil Procedure Rules do not provide for amendment of applications. The Respondent relies on the ruling in Re Estate of John Sylvah Olwochi (Deceased) [2025] KEHC 11839 (KLR), where the Court held that there is no express statutory provision permitting the amendment of an interlocutory application. The Respondent also relies on Jaribu Credit Traders Limited v Fidelity Bank Limited & another [2024] KEHC 3412 (KLR), where the Court held that an application is not amendable under the Civil Procedure Rules. 12.The Applicant concedes that the initial Notice of Motion was dated 2nd October 2024, followed by an Amended Notice of Motion dated 29th October 2024, a Re-Amended Notice of Motion dated 12th June 2025, and finally the Re-Re-Amended Notice of Motion dated 13th October 2025. 13.The Applicant relies on Section 51(1) of the Advocates Act and contends that t the Act does not bar amendment of an application for entry of judgment once filed. He submits that the ruling in Jaribu Credit Traders Limited v Fidelity Bank Limited & another was dealing with the Civil Procedure Rules and cannot apply to proceedings under the Advocates Act. 14.I have carefully considered the rival submissions. The Applicant has amended his primary Notice of Motion on three separate occasions, that is, on 29th October 2024, on 12th June 2025, and finally on 13th October 2025. According to the court record, no leave was sought and obtained from the court before any amendment was made. In the circumstances, I find that the Notice of Motions amended on 29th October 2024, on 12th June 2025, and finally on 13th October 2025 were incompetent for being filed without the leave of the court. Besides, the applicant did not demonstrate any alternative source of permission to amend the motions. The primary Notice Motion is overtaken by events. 11.The primary motion dated 2nd October 2024 sought for entry of judgment in respect of a certificate of costs dated 26th July 2024 issued by Hon Mbeja. It is common knowledge that the said certificate of costs was challenged by the respondent vide a Chamber Summons dated 5th December 2024 and Ndolo J, vide a ruling delivered on 27th February, 2025 set aside the said certificate and remitted the Bill of Costs for fresh taxation before a different Taxing Officer of the Court. It follows that the Notice of Motion dated 2nd October 2024 is overtaken by events and rendered otiose. 12.Having found that all the amended Notices of Motion are incompetent and further that the primary Notice of Motion dated 2nd October 2024 is overtaken by events, I see no need of answering the other issued framed for determination. For that reason, I make the following orders:-a.The Notice of Motion dated 2nd October 2024 is overtaken by events and all the subsequent amendments without the leave of the Court are deemed incompetent and struck out.b.The applicant is condemned to pay costs to the respondent. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 25TH DAY OF MAY, 2026.ONESMUS MAKAUJUDGEAppearance:Chokaa for ApplicantOlonde for Respondent