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ELRCPartially Allowed· [2019] KEELRC 2220 (KLR)

Wilson Nyaigoti Bichanga v Kisii University [2019] KEELRC 2220 (KLR)

Employment and Labour Relations Court
14 February 2019
MOMaureen OnyangoMNMathews Nderi Nduma
2,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant, engaged by Kisii University as a part-time lecturer between May 2012 and December 2013, filed a memorandum of claim dated 21 October 2014 seeking Kshs.2,235,600 as honorarium, transport and subsistence allowances for various courses taught across the university's campuses. In its defence, the respondent admitted engaging the claimant but disputed the rates claimed, admitting liability of Kshs.632,440 and asserting part payment of Kshs.223,000, with a balance of Kshs.227,129 said to be outstanding. When the matter came up for hearing on 29 March 2017, the court directed the parties to reconcile accounts; the reconciliation revealed that no amount was outstanding between them, leaving only the issue of costs for determination. The claimant, relying on Municipal Council of Mavoko v Galot Industries and Hussein Janmohamed v Twensche Overseas Trading Company, submitted that costs follow the event and that payment after filing suit entitled him to costs. The respondent, relying on Ismail Hassan Abdullahi v Kenya Ports Authority and Little Africa Kenya Limited v Andrew Mwiti Jason, argued that costs do not automatically follow the event in the Industrial Court, that the claim was premature and an attempt at unjust enrichment, and that the claimant bypassed the Labour Officer contrary to Sections 47, 48, 49 and 87 of the Employment Act. The court held that under Section 12(4) of the ELRC Act costs do not follow the event but are awarded as the court considers just. Since the respondent admitted sums and paid only after suit was filed, the claimant was the successful party and entitled to costs, which were awarded on the admitted sum of Kshs.632,440, to be agreed or taxed.

Key legal issues

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Whether costs follow the event in the Employment and Labour Relations Court

Holding

Costs do not follow the event; the court exercises a discretion under Section 12(4) of the ELRC Act. A claimant who was compelled to file suit to recover sums admitted by the respondent and paid only after filing suit is the successful party and entitled to costs.

Reasoning

The court distinguished the civil procedure regime, noting that under Section 12(4) of the ELRC Act costs are awarded as the court considers just. The respondent admitted Kshs.632,440 in its defence and paid only after the claim was filed; had the respondent not been in default, no suit would have been necessary. The court therefore exercised its discretion to compensate the claimant for the expense of filing and prosecuting the suit, but limited costs to the admitted sum.

p. 7

Legal principles established

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  • In the Employment and Labour Relations Court, costs do not follow the event; the court has discretion to award costs as it considers just, and a party compelled to file suit to recover an admitted debt is entitled to costs.

Court orders

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  1. 1.The claimant is awarded the costs of this suit based on the admitted sum of Kshs.632,440, to be either agreed upon by the parties or to be taxed
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12(4)

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, "Wilson Nyaigoti Bichanga v Kisii University [2019] KEELRC 2220 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2220/eng@2019-02-14

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