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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 920 (KLR)

Allan Kimutai Ngeiywo v Chase Bank (Kenya) Limited & another [2015] KEELRC 920 (KLR)

Employment and Labour Relations Court
5 June 2015
RSRadido Stephen
935 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant sued the Respondents on 12 June 2014 for unfair and wrongful termination of employment, seeking injunctive relief, reinstatement, a declaration or alternatively maximum compensation. The Respondents never filed a Response on the merits, only responses to the initial motion, and a consent of 25 September 2014 saw the Claimant resume duties with the suit marked settled, costs left to negotiation. Failing agreement, the Claimant's Bill of Costs was taxed on 2 April 2015, with the Taxing Officer awarding instruction fees of Kshs 500,000/- plus getting up fees and various items. The Respondents then sought to set aside the taxation and have the bill remitted to a different Taxing Officer, arguing that the Taxing Master misdirected himself by applying Schedule VI A in a non-complex matter, awarding getting up fees when the cause was settled before being fixed for hearing, and allowing items without proof. The court, in a judgment delivered at Nakuru on 5 June 2015, held that with no Response filed, Schedule 6(1)(a) of Legal Notice No. 35 of 2014 applied, making the award of Kshs 500,000/- a six-fold increase on the basic fee, manifestly excessive in a run-of-the-mill unfair termination claim. It reassessed instruction fees at Kshs 80,000/-, disallowed getting up fees (the cause not having been confirmed for hearing and no denial of liability filed) and disallowed unproven items 29, 30, 31, 32, 48, 58, 59-60. Proclaimed goods to be released on payment of the reassessed bill and auctioneers' charges; each party to bear own costs.

Key legal issues

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01

Whether the instruction fee of Kshs 500,000/- was manifestly excessive

Holding

The Taxing Officer misdirected himself by increasing the basic instruction fee six fold; the fee was reduced to Kshs 80,000/-

Reasoning

Where no Response was filed, the applicable schedule provided an instruction fee of Kshs 75,000/- plus 1.75% of the amount above Kshs 1,000,000/-. The Taxing Officer's award of Kshs 500,000/- exceeded even the basic fee for defended causes. Ordinary unfair termination claims are the daily staple of the ELRC and the matter showed no complexity or novel issues.

p. 2
02

Whether getting up fees were payable

Holding

Disallowed; the prerequisites were not met as no Response denying liability was filed and the cause was never confirmed for hearing

Reasoning

Schedule 6(2) conditions getting up fees on a denial of liability or issues joined by pleadings, and 6(2)(ii) requires the case to have been confirmed for hearing. Since the Respondents filed no Response and the cause settled before being fixed for hearing, allowing the fee was an error of legal principle.

p. 2
03

Whether unproven items in the Bill of Costs were allowable

Holding

Disallowed for want of proof that the work was actually done

Reasoning

The court reviewed items 29, 30, 31, 32, 48, 58, 59-60 and found no evidence before the Taxing Officer that the letters were drawn, perused or copies made, requiring taxation officers to verify actual performance.

p. 3

Legal principles established

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  • Where no Response is filed, Schedule 6(1)(a) of Legal Notice No. 35 of 2014 applies to the instruction fee, and where no amount is pleaded the court may assess the likely recoverable sum for taxation purposes
  • Getting up fees can only be allowed where a case has been confirmed for hearing or where issues are joined by pleadings
  • Taxing Officers must ensure the claiming party actually carried out the activity claimed in items requiring particulars

Court orders

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  1. 1.Instruction fees reassessed at Kshs 80,000/-
  2. 2.Getting up fees disallowed
  3. 3.Items 29, 30, 31, 32, 48, 58, 59-60 disallowed
  4. 4.Proclaimed/attached goods to be released on the Respondents paying the bill as reassessed together with auctioneers' charges
  5. 5.Each party to bear own costs

Authorities

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Legislation

  • Legal Notice No. 35 of 2014Schedule 6(1)(a); Schedule 6(2); Schedule 6(2)(ii)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the cause and incidental taxation matters

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Allan Kimutai Ngeiywo v Chase Bank (Kenya) Limited & another [2015] KEELRC 920 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/920/eng@2015-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.