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ELRCAllowedChamber Summons dated 20.4.2016· [2016] KEELRC 583 (KLR)

Jayesh M. Sutaria v Jambo Biscuits (K) Ltd [2016] KEELRC 583 (KLR)

Employment and Labour Relations Court
7 October 2016
OMO. Makau
1,013 words in judgment
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The bottom line

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A Mombasa employment court set aside an inflated costs award, confirming that Kenyan taxing officers must follow the prescribed fee scales, not guesswork.

What this practically means

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Executive summary

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The Deputy Registrar taxed the claimant's party and party bill of costs dated 14.1.2014 at Kshs 184,343.30 on 23.6.2015. The applicant, Nitin Dawda, mounted a reference by Chamber Summons dated 20.4.2016, contending that the Taxing Master failed to calculate instruction fees based on the final award of Kshs 143,000 (the suit having been filed for Kshs 505,000), failed to adjust the getting-up fees accordingly, failed to consider the applicant's objections, and arrived at an excessive and oppressive figure by unlawfully exercising discretion. The claimant opposed without reasons, though conceding the final award figure. The court reproduced the Taxing Master's ruling, which taxed instruction fees at Kshs 63,000 'as drawn' on the basis of the 'nature of complexity of the claim' and allowed all other items 'as drawn'. The court identified two errors: first, the Taxing Master never considered the value of the case from the pleadings and final award, contrary to Schedule VI paragraph 1(b) of the Advocates (Remuneration) (Amendment) Order 2009; second, he purported to exercise discretion over items other than instruction fees, which the law does not permit. Following the Court of Appeal's decision in Joreth Ltd v Kigano and Associates, the court held that value must be determined from the pleadings, judgment or settlement, and that every item must be compared with the prescribed scale, with excess amounts taxed off. The reference was allowed, the ruling and certificate of costs of 23.6.2015 set aside, the bill remitted for fresh taxation before a different taxing officer (other than Hon. G.O. Kimanga), and the applicant awarded costs of the reference.

Key legal issues

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01

Whether the Taxing Master erred by ignoring the value of the suit based on the pleadings and final award when fixing instruction fees

Holding

He erred; instruction fees must be calculated by reference to the value of the subject matter ascertained from the pleadings, judgment or settlement under Schedule VI para 1(b) of the Advocates (Remuneration) (Amendment) Order 2009

Reasoning

The Taxing Master taxed instruction fees 'as drawn' at Kshs 63,000 citing only the 'nature of complexity of the claim' without considering the value of the case from the pleadings and the final award of Kshs 143,000. The court held this ignored Schedule VI para 1(b) and the Joreth Ltd principle that value is determined from pleadings, judgment or settlement, and that this was the first error.

p. 2
02

Whether the Taxing Master had discretion to allow other items of the bill 'as drawn'

Holding

No; the Taxing Master has no discretion in taxing costs except on instruction fees

Reasoning

The Remuneration Order prescribes specific charges for specific services. The Taxing Master must compare each item with those figures, and where the costs charged exceed the prescribed amounts, must tax them off and award the rightful amount. Allowing all other items 'as drawn' under an imagined discretion was unlawful and vitiated the taxation.

p. 2

Legal principles established

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  • The value of the subject matter of a suit for purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement
  • A Taxing Master has no discretion in taxing costs except on the item of instruction fees, and must compare each item with the Advocates Remuneration Order scales

Court orders

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  1. 1.Chamber Summons dated 20.4.2016 allowed
  2. 2.Ruling dated 23.6.2015 and the certificate of costs of the same date set aside
  3. 3.Claimant's bill of costs dated 14.1.2014 remitted for fresh taxation by a Taxing Master other than Honourable G.O. Kimanga
  4. 4.Applicant awarded costs of the reference

Authorities

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Legislation

  • Advocates (Remuneration) (Amendment) Order 2009Schedule VI paragraph 1(b)

Cases cited (1)

  • Joreth Ltd vs Kigano and Associates
    Civil Appeal No. 66 of 1999
Jurisdiction invoked
Reference against a Taxing Master's ruling under the Advocates (Remuneration) Order; court's inherent/appellate supervisory jurisdiction over taxation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Jayesh M. Sutaria v Jambo Biscuits (K) Ltd [2016] KEELRC 583 (KLR)", Case Analysis (2016). Chamber Summons dated 20.4.2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/583/eng@2016-10-07

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