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ELRCDismissedELRC Application dated 26th February 2021 (arising from ELRC 12/2020)· [2021] KEELRC 1331 (KLR)

Gerald Kanyago Muthakia v Dedan Kimathi University of Technology [2021] KEELRC 1331 (KLR)

Employment and Labour Relations Court
30 June 2021
1,943 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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Kenya's Employment Court refused to increase a Kshs.200,000 instruction fee, ruling a simple unfair termination case dressed as a constitutional petition does not justify higher legal costs.

What this practically means

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Executive summary

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This was a chamber summons application dated 26th February 2021 by the respondent in an underlying employment petition (ELRC 12/2020), seeking to set aside the taxing master's ruling of 9th February 2021 which awarded Kshs.200,000.00 as instruction fees against the petitioner's party and party costs. The applicant contended that the taxing master failed to exercise her discretion judicially by awarding a manifestly low instruction fee, ignoring the importance of the petition to the petitioner's livelihood, the conservatory orders application, and the extensive research undertaken by counsel; she sought instruction fees of Kshs.1,500,000/=. The petitioner opposed, relying on Peter Muthoka on the restraint courts should show in interfering with taxation of quantum, and on authorities including First American Bank of Kenya v Shah setting out the error-of-principle threshold. The petitioner also relied on the Gathinga Mwangi authority that the party seeking costs must justify them cogently. The court, D.K.Njagi Marete J, held that the matter was a simple termination of employment dispute clothed as a constitutional petition; the applicant failed to demonstrate complexity or novelty that would take the award beyond Schedule 6A(1)(j)(ii) of the Advocates (Remuneration) (Amendment) Order, 2014, which prescribes a minimum of Kshs.100,000.00 for opposed constitutional petitions. No error of principle or manifest injustice was established. The application was dismissed with each party bearing their own costs. Judgment delivered at Nyeri on 30th June 2021.

Key legal issues

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01

Whether the Taxing Master erred in principle by awarding a manifestly low instruction fee of Kshs.200,000.00

Holding

No error of principle; the instruction fee was properly fixed under Schedule 6A(1)(j)(ii) of the Advocates (Remuneration) (Amendment) Order, 2014 as the matter was an opposed but simple employment petition

Reasoning

The court applied the First American Bank principles: interference requires an error of principle or a manifestly high or low award. The applicant failed to demonstrate complexity or novelty that would take the matter beyond the minimum of Kshs.100,000.00 for opposed constitutional petitions. The matter was a simple termination dispute clothed as a constitutional petition, so the taxing master's discretion was properly exercised and the court declined to disturb the award.

p. 3
02

Burden of justifying higher instruction fees

Holding

The party seeking higher costs must place before the taxing officer cogent evidence of complexity, responsibility, industry and time expended

Reasoning

Relying on Gathinga Mwangi & Company Advocates v Jane Mumbi Kiano, the court endorsed the principle that an applicant cannot merely file a bill of costs and expect the taxing officer to find supporting evidence on their own. The applicant's assertion of extensive research and importance of the petition did not discharge this burden.

p. 3

Legal principles established

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  • A taxing master's discretion on quantum of taxation will not be interfered with unless there is an error of principle or the sum awarded is manifestly excessive or low as to justify an inference of error or injustice
  • The party seeking higher costs bears the duty of justifying them with cogent evidence of complexity, industry and time involved; it is not enough to file the bill of costs

Court orders

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  1. 1.The application dated 26th February 2021 is disallowed
  2. 2.Each party to bear their own costs of the application
Jurisdiction invoked
Reference against the decision of the Taxing Master on a party and party Bill of Costs under the Advocates (Remuneration) Order

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, "Gerald Kanyago Muthakia v Dedan Kimathi University of Technology [2021] KEELRC 1331 (KLR)", Case Analysis (2021). ELRC Application dated 26th February 2021 (arising from ELRC 12/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1331/eng@2021-06-30

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