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ELRCDismissedChamber Summons dated 24th July 2017· [2018] KEELRC 1288 (KLR)

William Nembe Obora and 73 others v Rift Valley Railways (Kenya) Limited [2018] KEELRC 1288 (KLR)

Employment and Labour Relations Court
10 August 2018
MOMAUREEN ONYANGO
2,057 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that winning 'costs of the suit' does not automatically include costs on a dismissed counterclaim unless the judgment specifically awards them.

What this practically means

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Executive summary

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This was a Chamber Summons dated 24th July 2017, brought under Sections 1A, 1B and 31 of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules and Rule 11(2) of the Advocates (Remuneration) Order, seeking to vacate and set aside the ruling of Deputy Registrar D. Mutai of 22nd June 2017 taxing a party and party bill of costs at Kshs.923,380.56, and to have the bill referred for fresh taxation. The applicant, a law firm, contended that the taxing master erred by computing instruction fees on a subject matter of Kshs.33,916,454 (the judgment award in the employment suit decided by Mbaru J. on 18th June 2014) instead of Kshs.42,300,000, because she failed to factor in the value of the respondent's counterclaim of Kshs.34,954,250.60, which had been dismissed, and failed to consider the complexity of the matter and to give reasons. The respondent, through its Company Secretary Eunice Arwa, maintained that the ruling was sound. The court reviewed the judgment of 18th June 2014, noting that while the claimants were awarded compensation and 'costs of the suit', the counterclaim was dismissed with no costs award on it. Comparing several authorities where costs of counterclaims were expressly awarded, the court held that a suit and a counterclaim are distinct, and costs on a counterclaim are payable only if specifically awarded. The Deputy Registrar was therefore right to base taxation on the subject matter of the suit alone. The application was dismissed with costs.

Key legal issues

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01

Whether costs awarded on a suit automatically include costs on a dismissed counterclaim

Holding

No - costs on a counterclaim must be specifically awarded by the court; the judgment of Mbaru J. awarded costs of the suit only and dismissed the counterclaim without any costs award, so the taxing master correctly excluded the counterclaim value

Reasoning

The court examined the judgment of 18th June 2014, which dismissed the counterclaim of Kshs.34,954,250.60 and awarded 'costs of the suit' to the claimants. It then compared several judgments showing courts expressly awarding costs of counterclaims when intended, and concluded that absent such a specific award, no costs are payable on a dismissed counterclaim. The Deputy Registrar's ruling was therefore sound.

p. 4
02

Whether the taxing master's discretion could be interfered with on the applicant's grounds

Holding

No - the taxing master exercised her discretion on a correct basis, and the application did not demonstrate an error of principle warranting reference back for fresh taxation

Reasoning

The applicant argued the taxing master relied solely on the judgment award and ignored the counterclaim and complexity of the matter. The court found the authorities relied on by the respondent persuasive and held that the ruling was sound, dismissing the application with costs rather than remitting the bill for re-taxation.

p. 1

Legal principles established

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  • A suit and a counterclaim are distinct; costs of a dismissed counterclaim are not payable unless the court specifically awards them
  • The value of the subject matter for taxation of instruction fees is determined from the pleadings, judgment or settlement where ascertainable

Court orders

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  1. 1.The application is found without merit and dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 31
  • Civil Procedure RulesOrder 50 Rule 6
  • Advocates (Remuneration) OrderRule 11(2); Schedule 6(l)(b)

Cases cited (17)

  • JORETH LTD -V- KIGANO AND ASSOCIATES
    (2002) 1EA 92
  • KENYARIRI & ASSOCIATES ADVOCATES -V- SALAMA BEACH HOTEL LIMITED AND 4 OTHERS
  • NGURUMAN LIMITED -V- KENYA CIVIL AVIATION AUTHORITY & 3 OTHERS
  • JEREMIAH MUKU -V- METHODIST CHURCH IN KENYA TRUSTEES REGISTERED & ANOTHER
  • MBOGO -V- SHAH
  • NYAGITO & COMPANY ADVOCATES & DOINYO LESSO CREAMERIES LIMITED
  • Minister for Agriculture & 2 Others ex-parte Samuel Muchiri W'Njuguna
    [2006] eKLR
  • Raila Amollo Odinga & Another -v- Independent Electoral and Boundaries Commission & 2 Other
    [2017] eKLR
  • M/S Nyaundi Tuiyott & Company Advocates -v- Tarita Development Limited
    [2016] eKLR
  • M/S Lubuleliah & Associates Advocates -v- N K Brothers Limited
    [2014] eKLR
  • Muema Kitulu t/a Muema Kitulu & Company Advocates -v- County Government of Kitui
    [2015] eKLR
  • Kipkorir, Titoo & Kiara Advocates -v- Deposit Protection Fund Board
    [2005] eKLR
  • Gacau Kariuki & Company Advocates -v- Alan Mbugua Ng'ang'a
    [2012] eKLR
  • INTERNATIONAL CHILD CARE TRUST (K) -V- DAVID JAMES MBOGO
    2015
  • PAMELA NALIONA LETTA -V- MUMIAS SUGAR COMPANY LIMITED
  • EPHANTUS NJOGU NDAMBURI -V- JUSTUS NGARI & ANOTHER
  • ALBERT KANAKE KARIUKI T/A KIVANGUA INVESTMENT -V- COUNTY COUNCIL OF EMBU
Jurisdiction invoked
Sections 1A, 1B, 31 Civil Procedure Act; Order 50 Rule 6 Civil Procedure Rules; Rule 11(2) Advocates (Remuneration) Order 2014/2015

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, "William Nembe Obora and 73 others v Rift Valley Railways (Kenya) Limited [2018] KEELRC 1288 (KLR)", Case Analysis (2018). Chamber Summons dated 24th July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1288/eng@2018-08-10

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