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ELRCPartially AllowedPetition No 4 of 2014· [2015] KEELRC 1513 (KLR)

Geoffrey Makana Asanyo v Nakuru Water & Sanitation Services Company Ltd & 8 others [2015] KEELRC 1513 (KLR)

Employment and Labour Relations Court
23 January 2015
3,129 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court slashed a Kshs 14.2 million legal fees award to under Kshs 500,000 on key items, warning that big document piles don't equal complex cases.

What this practically means

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Executive summary

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Ongaya J had on 30 May 2014 allowed one of three declarations in a petition challenging the advertising of six director positions of the 1st Respondent as contrary to Articles 41 and 47 of the Constitution, and ordered the Respondents to pay the Petitioner's costs. A bill of costs filed on 3 June 2014 for Kshs 33,531,048/- was taxed on 7 August 2014 at Kshs 14,270,772/-. Two summonses followed: one by the 3rd to 6th Respondents (through Prof. Ojienda SC) and one by the 1st Respondent (through Mr. Ombui), each seeking to set aside the Taxing Officer's decision on specified items and to have the fees reassessed or remitted. The Petitioner defended the taxation. Radido J held that the Taxing Officer gave sufficient reasons, that costs in the Employment and Labour Relations Court are discretionary and do not follow the event under section 12(4) of the Employment and Labour Relations Act, and that the Advocates (Remuneration) Order 2009 applied save for post-11 April 2014 processes. Finding the Taxing Officer misdirected herself on complexity, time expended and the preliminary objection fees, the Court set aside items 1, 2 and 13, substituting instruction fees of Kshs 300,000/-, preliminary objection fees of Kshs 100,000/- and getting up fees of Kshs 100,000/-, left other items undisturbed, directed costs of the taxation to be borne equally among the Respondents, ordered each party to bear its own costs of the references, and directed the Deputy Registrar to issue a fresh certificate of costs within five days. Judgment delivered at Nakuru on 23 January 2015.

Key legal issues

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01

Discretion on costs in the Employment and Labour Relations Court

Holding

Costs are discretionary and governed by what is just; they do not follow the event as under section 27(1) of the Civil Procedure Act.

Reasoning

The Court held that section 12(4) of the Employment and Labour Relations Act gives the Judge a wider discretion than the High Court, permitting consideration of factors such as the relationship between litigants and their financial position. Justice, not the outcome, governs costs awards in this Court.

p. 4
02

Whether instruction fees of Kshs 10,000,000/- were justified

Holding

Set aside and substituted with Kshs 300,000/-; the Taxing Officer misdirected herself on complexity and time expended.

Reasoning

The Petition, though raising important constitutional issues, was not complex or novel. Complexity could not be inferred merely from voluminous documentation, and no proof of time expended (dates, durations, call logs) was laid before the Court as required to justify fees under that head.

p. 6
03

Fees for the preliminary objection (item 13)

Holding

The Kshs 1,000,000/- allowed was so high as to be unreasonable and arbitrary; substituted with the prescribed Kshs 100,000/- under schedule 6 paragraph 2(j).

Reasoning

The preliminary objection on jurisdiction, though a matter of statutory interpretation of 'employee' under the Employment Act and the Court's jurisdiction, raised nothing complex or novel. The prescribed fee for opposing applications for constitutional orders where there is opposition is Kshs 100,000/-.

p. 5
04

Getting up fees (item 2)

Holding

Set aside and substituted with 1/3 of the reassessed instruction fees of Kshs 100,000/- (i.e. Kshs 100,000/- awarded).

Reasoning

Getting up fees is allowable where issues for trial are joined on the pleadings and the advocate prepares the case for trial. Petitions are ordinarily determined on papers, and here the parties agreed to proceed on the record and submissions; some preparation existed but the fees had been pegged to an inflated instruction fee.

p. 6
05

Applicability of the Advocates (Remuneration) Order to this Court

Holding

Schedule 6 of the Advocates (Remuneration) Order applies to proceedings in this Court, though a tailored schedule for employment disputes is desirable.

Reasoning

The Remuneration Orders provide for remuneration in High Court proceedings without mentioning the Employment and Labour Relations Court. The Court accepted that schedule 6 nonetheless applies, with a rider that employment disputes are not commercial relationships and merit a specific schedule.

p. 5

Legal principles established

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  • Costs in the Employment and Labour Relations Court are discretionary and do not automatically follow the event; a successful party is not entitled to costs as a matter of course.
  • The voluminous nature of documents filed alone cannot be a pointer to the complexity of questions for determination; complexity must be measured against the issues presented.
  • The Advocates (Remuneration) Order, 2009 applied to the petition, save for attendances, filings and processes taken after commencement of the 2014 Amendment Order on 11 April 2014.

Court orders

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  1. 1.The summons filed by the 3rd to 6th Respondents and the 1st Respondent are allowed
  2. 2.The Taxing Officer's decision on items no. 1, 2 and 13 is set aside and substituted with instruction fees of Kshs 300,000/-, instruction fee on preliminary objection of Kshs 100,000/- and getting up fees of Kshs 100,000/-
  3. 3.The costs of the taxation to be borne equally amongst the 1st and 3rd to 6th Respondents or as the Respondents may indicate
  4. 4.Each party to bear own costs of the references
  5. 5.The Deputy Registrar to issue a fresh certificate of costs in conformity with the ruling within the next 5 days

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41 and 47
  • Employment and Labour Relations Actsection 12(4)
  • Civil Procedure Actsection 27(1)
  • Advocates (Remuneration) Order, 2009schedule 6, paragraph 2(j)
  • Advocates (Remuneration) (Amendment) Order, 2014commencement 11 April 2014
  • Employment Actdefinition of employee

Cases cited (2)

  • Joreth Ltd v Kigano & Associates
  • Postal Corporation v Donald Kipkorir & 3 ors
    Nairobi HCCC No. 658 of 2004 (OS)
Jurisdiction invoked
Section 12(4) of the Employment and Labour Relations Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Geoffrey Makana Asanyo v Nakuru Water & Sanitation Services Company Ltd & 8 others [2015] KEELRC 1513 (KLR)", Case Analysis (2015). Petition No 4 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1513/eng@2015-01-23

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