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ELRCPartially AllowedNairobi ELRC Misc. Application (Reference) dated 2nd July 2019, re NAIROBI ELRC MISC. APPLICATION NO. 21 OF 2019· [2020] KEELRC 1156 (KLR)

Job Nyasimi Momanyi v Kenyatta National Hospital [2020] KEELRC 1156 (KLR)

Employment and Labour Relations Court
12 May 2020
4,285 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court threw out a Kshs.10 million fee assessment against Kenyatta National Hospital, ruling the underlying case was not 'public interest litigation' justifying such high advocate fees.

What this practically means

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Executive summary

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Kenyatta National Hospital (the client) filed a reference by chamber summons dated 2nd July 2019 under Rule 11 of the Advocates (Remuneration) Order, challenging the Deputy Registrar's ruling of 15th May 2019 taxing the advocate's advocate-client Bill of Costs at Kshs.23,306,357.45 (Kshs.22,436,357.45 after credit of a Kshs.870,000 deposit), and seeking stay of execution and remittal for fresh taxation. The client objected only to Item 1 (instruction fees of Kshs.10,000,000) and Item 2 (getting-up fees of Kshs.3,333,333.33) as excessive for a suit whose subject value could not be ascertained from the pleadings. The advocate opposed, contending the reference was filed 48 days out of time, that no reasons were required since the ruling contained reasons, and that the court should not interfere with an experienced taxing officer's discretion. On jurisdiction, the court held the reference timely: reasons were requested the day after the ruling and the reference was filed within fourteen days of receipt of the reasons, so the jurisdictional objection failed. On the merits, the court found that Cause No. 31 of 2015 (KUDHEIHA v KNH), a trade union dispute over CBA clauses, was not public interest litigation merely because public funds would pay salaries, and that the Taxing Officer misapprehended the nature of the suit and contradicted herself on the ascertainability of the subject matter, committing errors of principle. The court allowed the reference, set aside the decision on instruction and getting-up fees together with the certificate of costs of 24th May 2019, remitted the Bill of Costs for fresh taxation by a different Taxing Officer, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the reference was filed out of time so as to oust the court's jurisdiction

Holding

The reference was within time. The applicant requested reasons one day after the ruling, the reasons were furnished on 11th June 2019 and received on 17th June 2019, and the reference was filed on 3rd July 2019, within fourteen days of receipt of the reasons.

Reasoning

Rule 11(1) requires notice of objection within fourteen days of the decision, and Rule 11(2) allows a chamber summons to a judge within fourteen days of receipt of reasons. The respondent's argument that no reasons were needed came too late and was contradicted by the Taxing Officer having in fact given reasons. The objection on jurisdiction therefore failed.

p. 4
02

Whether the Taxing Officer erred in principle in assessing instructions fees at Kshs.10,000,000 and getting-up fees at Kshs.3,333,333.33

Holding

The Taxing Officer misdirected herself by treating the suit as public interest litigation and by first finding the value of the subject matter indeterminable and then departing from that finding, thereby erring on the intrinsic value of the subject matter and the fees payable.

Reasoning

Cause No. 31 of 2015 was a trade union dispute over members' terms of service in their private capacity as employees; it was not public interest litigation. Salaries are paid for work done and do not constitute loss of public funds. The Taxing Officer's internal contradiction on the ascertainability of the subject matter amounted to an error of principle, permitting the court to interfere with the taxation.

p. 7

Legal principles established

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  • A suit by a trade union over terms and conditions of service of its members, employed by a state corporation, is not public interest litigation merely because public funds would pay the salaries involved.
  • A taxing officer who misapprehends the nature of the suit errs in principle on the value of the subject matter, justifying the court's interference with the assessment of instruction fees.
  • Where a party has properly requested reasons under Rule 11 of the Advocates (Remuneration) Order and the reference is filed within fourteen days of receiving those reasons, the reference is within time and the court has jurisdiction.

Court orders

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  1. 1.The decision of the Taxing Officer on instructions fees and getting up fees as well as the extracted Certificate of Costs dated 24th May 2019 issued by the Taxing Officer in NAIROBI ELRC MISC. APPLICATION NO. 21 OF 2019 is set aside.
  2. 2.The Bill of Costs is remitted to the Deputy Registrar to be taxed afresh by a different Taxing Officer.
  3. 3.Each party shall bear its costs of this reference.

Authorities

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Legislation

  • Advocates (Remuneration) Order 2009Part 1 Section 11(1), 11(2), 11(3), 11(4) and 4
  • Civil Procedure Rules 2010Order 51 Rule 1; Order 22
  • Civil Procedure Act (Chapter 21)Sections 1A, 1B and 3A
  • Constitution of Kenya, 2010Articles 41, 50, 159(2)(d) and 48
  • State Corporations Actnot specified

Cases cited (12)

  • Truth Justice and Reconciliation Commission v Chief Justice of the Republic of Kenya Another
    (2014) eKLR
  • Ahmednassir Abdikadir and Company Advocates v National Bank of Kenya Limited
    (2006) eKLR
  • Evans Thiga Gaturu Advocate v Kenya Commercial Bank Limited
    (2012) eKLR
  • N. W. Amolo t/a Amolo Kibanya and Company Advocates v Samson Keengu Nyamweya
    (2016) eKLR
  • Ballon Safaris Limited v Skyslip Company Limited and Another
    (2015) eKLR
  • Joreth Limited v Kigamo and Associates
    null
  • National Oil v Real Emergency Limited and Another
    (2016) eKLR
  • B. Mbai and Associates Advocates v Clerk, Kiambu County Assembly and Another
    (2017) eKLR
  • Kipkorir, Titoo and Kiara Advocates v Deposit Protection Fund Board
    (2006) eKLR
  • Premchand Raichand Limited and Another v Quarry Services E. Africa Limited
    (1972) E. A.
  • Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another
    [2016] eKLR
  • KUDHEIHA v Kenyatta National Hospital
    Nairobi ELRC Cause No. 31 of 2015
On appeal from
null
null
Jurisdiction invoked
Rule 11 of the Advocates (Remuneration) Order 2009 (reference to a judge against a taxing officer's decision); invoked with Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 and Order 22 of the Civil Procedure Rules 2010 and Article 50 of the Constitution

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, "Job Nyasimi Momanyi v Kenyatta National Hospital [2020] KEELRC 1156 (KLR)", Case Analysis (2020). Nairobi ELRC Misc. Application (Reference) dated 2nd July 2019, re NAIROBI ELRC MISC. APPLICATION NO. 21 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1156/eng@2020-05-12

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