Background
1 Arising from the Ruling of the Taxing Officer in Employment and Labour Relations Court at Nairobi, Miscellaneous Application No. E 117 of 2023, delivered on 22nd December 2023, on an Advocate – Client Bill of costs, the Applicant lodged a taxation reference vide the Chamber Summons dated 4th January 2024.
2 While the matter was awaiting ruling on the Applicant’s reference, and the cross-reference filed by the Respondent, the Intended Interested Party filed a Notice of Motion Application dated 5th November 2024, seeking the following orders;
I. Spent.
II. THAT this Honourable Court be pleased to set aside the Ruling and Orders entered on 31st of July 2024.
III. THAT leave be granted to the Intended Interested Party to file a Substantive Application for Joinder in the suit, the Interested Party.
IV. THAT leave be granted to the interested party to file and prosecute the application for joinder in the suit on merit.
V. THAT the Honourable Court be pleased to make and or issue orders as it may deem fit to grant.
VI. THAT the costs of this Application be in the course.
3 The application is supported by the grounds obtaining on the face thereof, and the supporting affidavit of Lempaa Suyianka, Counsel for the Intended Interested Party.
4 The Applicant resisted the Application by a replying affidavit sworn on 1 January 2025 and a preliminary objection dated the same date.
The Application
5 The Intended Interested Party’s application is anchored on the following prime grounds as can be deduced from the grounds on the face of it and the supporting affidavit, mentioned hereinabove, thus;
I. The matter before this Court is a Reference flowing from the Ruling of the Taxing Officer in Miscellaneous application No. E117 of 2023, which seeks to have the Ruling set aside and the Bill of Costs taxed afresh.
II. On 9th July 2024, the Pensioners, members of the Respondent Scheme, through their representative John Wanyeki Ngare, instructed the Counsel’s Law Firm to represent them and file an application to be joined in the proceedings as an Interested Party.
III. On 9th July 2024, Counsel’s Law Firm proceeded to file a Notice of Appointment and requested to be Mapped in the case on the E-Judiciary filing portal for easier tracking of the case activities.
IV. On the 10th of July 2024, when the matter was scheduled for mention before this Court, Counsel Alex Kubo, on behalf of the Interested Party, moved the Court and sought leave to file a Substantive Application for joinder of the Pensioners through their representative as an Interested Party to the proceedings.
V. The Court allowed the request by Counsel and granted leave for the filing of the application for joinder and issued a direction that the ruling on the said application would be rendered on the 31st of July 2024.
VI. On 25th July 2024, the Intended Interested Party proceeded to file and serve the Substantive Application for joinder dated the 22nd of July 2024.
VII. On 31st July 2024, this Court rendered itself by a ruling of the same day, denying the Intended Interested Party audience before it for reasons inter alia, that Counsel appearing for them was not properly on record, having not filed any Notice of Appointment.
VIII. In the ruling, the Court didn’t make any reference to the application dated 22nd July 2024, a clear indication that the Court didn’t receive a copy of the same, yet it was filed on the E-Portal.
IX. Their Counsel got prompted to reach out to the Deputy Registrar of this court, Honourable Aziza Ajwang, who informed them that due to a technical glitch, their notice of appointment as well as the application were not visible on the Court’s E-filing system, thus the reason why they were not part of the Court record.
X. The Court further declined to give audience to the Intended Interested Party, on account of res judicata, noting the application intended to bring on board additional evidence, a matter on which the court had already pronounced itself.
XI. The Intended Interested Party have a merited case for joinder in the proceedings in the form of the application dated 22nd July 2024, which raises triable issues.
XII. The Advocate/Applicant is deliberately misleading the Court as to the value of the subject matter of the suit, which stands at approximately KShs. 2,100,000,000 and not 19 249 713 589.40 as claimed in his reference.
XIII. To date, ELRC 1352 OF 2018 has not been concluded, and Judgment has not been entered to warrant the fees sought by the Advocate /Applicant.
XIV. The joinder of the Interested Party will not vex the Parties or convolute the proceedings with unnecessary new matters and grounds not contemplated by the parties or envisaged in the pleadings for the reason that a closer interrogation of the position of the suit would indicate that the Advocate /Applicant has deliberately misdirected the court on the position of the value of the subject matter.
The Respondent’s Preliminary Objection and Response.
6 The Respondent, by way of a Notice of Preliminary objection, raises the grounds hereunder, and seeks that the Intended Interested Party’s instant application be dismissed. That:
I. The Application is filed in the wrong forum. The issues raised can only be raised in an appeal filed at the Court of Appeal. The Application is an attempt by the Intended Interested Party to reintroduce its oral application for joinder that was declined by the Court on 31st July, 2024.
II. This Court has no jurisdiction to set aside its ruling dated 31st July 2024 by way of review, as the law doesn’t give power to review a ruling rendered in a taxation reference. Even if the court had jurisdiction, the Application would still fail, seeing as it doesn’t meet the threshold for review.
III. The Application offends the res judicata doctrine by reopening issues that this Court conclusively addressed in the July 31, 2024 ruling. The Court is functus officio, having rendered its opinion on the Interested Party’s bid to be joined to the proceedings and to introduce additional evidence at a taxation reference.
IV. The Court doesn’t have jurisdiction to join a party at a taxation reference.
V. This Court does not have the Jurisdiction to determine disputes between the Interested Party and the Respondent as the Court of first instance during taxation proceedings.
VI. The Intended Interested Party doesn’t have standing to participate in taxation reference proceedings brought under Order 11 of the Advocates Remuneration Order, as he is not the Applicant’s client.
VII. The Intended Interested Party’s Application is a veiled attempt by the Respondent to file a reference out of time in violation of Order 11 of the Advocates Remuneration Order.
VIII. The Intended Interested Party’s Application is frivolous, vexatious, and an abuse of the Court process, calculated to circumvent well-laid appellate and taxation reference procedures, and is an attempt to have this court revisit the question of additional evidence at taxation reference over which it has pronounced itself.
IX. The Affidavit supporting the Intended Interested Party’s Application is fatally defective. It doesn’t have its exhibits securely sealed thereto under the seal of the commissioner and marked with serial letters of identification, thereby offending rule 9 of the Oaths and Statutory Declarations Rules. The Intended Interested Party’s Application is, therefore, unsupported and should be struck out.
Analysis and Determination
7 The Applicant’s Notice of Preliminary Objection raises jurisdictional issues. Good order, and this has been emphasised in a host of judicial precedents, requires that once a jurisdictional issue[s] is raised, it be dealt with conclusively before the Court moves further with the proceedings before it, as, if the Court resolves that it is wanting in jurisdiction to entertain the matter, it shall down its tools and proceed no further. See also Motor Vessel “Lilian S’’ v Caltex Oil [K] Ltd [1989] EKLR.
8 As such, I will first deal with the Applicant’s Preliminary Objection. If it succeeds, I will not proceed with the instant application but dismiss it.
9 It is not disputed that on 10th July 2024, Counsel Alex appeared before this Court for the Intended Interested Party. He informed the Court that the Intended Interested Party intended to apply to onboard an agreement that was executed between the Applicant and the Respondent, which agreement, the Trustees of the Respondent, in breach of their fiduciary, failed to place before the Taxing Master. The Intended Interested Party, therefore, wanted to be joined in the proceedings, to enable them to file a response to the Applicant’s reference.
10 Mr Nyaga, Counsel for the Applicant, vehemently opposed the application.
11 Upon hearing the respective submissions by Counsel, this Court directed;
“This Court has to render itself on the issue raised by Counsel Alex. If what he has raised is found to have merit, I will defer the fixing of a ruling date until the application alluded to his heard and determined. If I find it destitute in merit, I shall proceed to fix the reference for ruling. Ruling 31st July 2024.”
12 This Court has noted that, misleadingly and misguidedly, Counsel Lampaa, the deponent of the supporting affidavit, deposes;
“8. This Honourable Court allowed the request by Counsel and granted the Law Firm leave to file the application for joinder and issued a direction that a Ruling on the said application would be rendered on the 31st of July 2024.
13 This, with great respect, does not make sense at all. The Court didn’t grant leave for the filling of the application. Undoubtedly, in the ruling, this Court was to decide whether or not to allow the Intended Interested Party to apply for joinder.
14 This Court noted that the sole purpose for which the Intended Interested Party wanted to be enjoined into these proceedings was to facilitate onboarding of a document into the proceedings, document which had not been placed before the Taxing Master, and held that initially it had rendered itself on the issue of filing the additional document[s] in reference proceedings, and could not revisit the issue under the intended application, as the principle of res judicata, would not allow. Further, the filing of the application in the circumstances would be a waste of time and an affront to the overriding objective of this court, an expeditious disposal of matters.
15 By reason of the foregoing premises, the instant application cannot be viewed in any other way, other than it being res judicata and an abuse of the court process.
16 The Supreme Court of the United Kingdom elaborately discussed the principle of finality of court decisions and the approach a Court faced with an application to reconsider its judgment or order, should give such an application, and I agree, thus;
“On receipt of an application by a party to reconsider a final judgment and /or order before the order had been sealed, a court should not start from anything like neutrality or evenly-balanced scales. It would often be a useful mental discipline, reflective of the strength of the finality principle, for the court to ask itself whether the application should even be entertained at all before troubling the other party with it or giving directions for a hearing. It could be a perfectly appropriate judicial response just to refuse the application in limine after it had been received and read, if there was no real prospect that the application could succeed.
The court should not reopen proceedings just to allow debate on the point if it was already clear that the judgment or order should not be reopened. That would defeat the overriding objective in the Civil Procedure Rules that cases be decided justly and at proportionate cost. ……….”
17 The Intended Interest Party hasn’t persuaded me that there exists any sufficient factor to cause this Court to depart from the finality of the court decisions principle, to see that this Court isn’t functus officio the instant application, and that the doctrine of res judicata does not fully militate against it.
18 In the upshot, the Applicant’s preliminary points raised and the application that the Intended Interested Party’s application herein be dismissed has merit. As a result, the Intended Interested Party’s application dated 5th November 2024, is hereby dismissed with costs.
Dated, signed and delivered virtually in Mombasa this 27th day of March, 2025.