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ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 1715 (KLR)

Thomas Babu Mwaniki v Vision Africa Sacco Limited [2021] KEELRC 1715 (KLR)

Employment and Labour Relations Court of Kenya
4 May 2021
HWHellen Wasilwa
1,383 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court ruled that costs awarded when a dismissed suit is reinstated cover only the disruption caused, not the whole case.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court, delivered virtually on 4th May 2021 by Hellen Wasilwa J, determines a preliminary objection raised by the claimant against the respondent's party and party Bill of Costs dated 9th September 2020. The claimant contended that the bill was premature because the main suit, reinstated on 7th July 2020 by Mbaru J on conditions including payment of costs, was still pending; that no order had been made awarding the respondent costs of the entire suit as required by section 27(1) of the Civil Procedure Act; and that no taxation of costs of the claimant's application dated 10th March 2020 had been ordered as contemplated by Order 51 rule 11(2) of the Civil Procedure Rules. The claimant relied on authorities holding that 'the event' under section 27 means the outcome of the entire litigation, that instructions fees should not be awarded at an interlocutory stage, and that costs on reinstatement are merely thrown away costs. The respondent argued that the court had exercised its discretion under section 12(4) of the ELRC Act and that the objection was not a pure point of law under Mukisa Biscuits, the proper remedy being review or appeal. Holding that the 7th July 2020 orders contemplated only thrown away costs payable upon reinstatement and not taxation of the costs of the entire pending suit, the court allowed the preliminary objection, disallowed the bill of costs, and substituted it with thrown away costs of Kshs.20,000/= payable by the claimant before a hearing date is taken.

Key legal issues

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01

Whether a party and party bill of costs may be taxed while the main suit is pending

Holding

No - the costs awarded on reinstatement were thrown away costs only, and the respondent's bill of the entire suit was premature and was disallowed and substituted with a fixed sum for thrown away costs.

Reasoning

The court examined the orders of 7th July 2020 by Mbaru J reinstating the suit on condition that the claimant pays costs incurred to date. The court held those orders did not contemplate taxation of party and party costs of the entire suit, which remains pending. It therefore upheld the claimant's preliminary objection and substituted the bill with thrown away costs of Kshs.20,000/= payable before a hearing date is allocated.

p. 3

Legal principles established

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  • Costs ordered upon reinstatement of a dismissed suit are thrown away costs, not costs of the entire suit, and cannot be taxed as a party and party bill of the whole suit while the suit is pending.

Court orders

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  1. 1.The preliminary objection is allowed and the intended party and party bill of costs is disallowed
  2. 2.The party and party bill of costs is substituted with thrown away costs of Kshs. 20,000/= to be paid by the claimant before a hearing date of the suit is taken

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)section 27(1)
  • Civil Procedure RulesOrder 51 rule 11(2)
  • Employment and Labour Relations Court Actsection 12(4)
  • Court Rules (ELRC)Rule 29(1) and (2); Rule 16

Cases cited (6)

  • Thomas Gitau Njogu & 4 others versus Patrick Waruinge Muhindi & 2 others
    [2013] eKLR
  • Kenya Pipeline Company Limited versus Gray Soil Investment Limited & 3 others
    [2009] eKLR
  • Gursharam Singh Brar T/A Kinale Saw Mills versus Mathew Oseko
    [2006] eKLR
  • Auto Springs Manufacturers Limited versus Damisha Building Contractors Limited
    [2017] eKLR
  • Homi Dara Adrinwalla versus Jeanne Hogan and another
    [1966] 1EA 290
  • Mukisa Biscuits Co versus West End Distributors
    [1969] EA 696
Jurisdiction invoked
Section 12(4) of the Employment and Labour Relations Court Act and Rule 29(1) and (2) of the Court Rules

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, "Thomas Babu Mwaniki v Vision Africa Sacco Limited [2021] KEELRC 1715 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1715/eng@2021-05-04

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