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ELRCPartially AllowedELRC Petition No. 3B of 2019 (Reference – Chamber Summons dated January 5, 2022)· [2022] KEELRC 1213 (KLR)

County Assembly of Kericho & another v Bett & another (Miscellaneous Civil Cause E001 of 2020) [2022] KEELRC 1213 (KLR)

Employment and Labour Relations Court
12 May 2022
2,843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court slashed an inflated legal costs bill, confirming that lawyers can only charge above the minimum fee if the case's complexity justifies it.

What this practically means

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Executive summary

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This was a reference by way of Chamber Summons dated January 5, 2022, brought under section 89 of the Civil Procedure Act and Schedule 6 of the Advocates Remuneration Order (ARO) 2014 with leave granted on December 16, 2021, by the respondents in the primary suit (ELRC Petition No. 3B of 2019) seeking to set aside the Deputy Registrar's decision of July 7, 2021 taxing the petitioners' Party and Party Bill of Costs dated March 22, 2021 at Kshs 713,610, or to have it remitted for re-taxation by a different Taxing Officer. The applicants argued that the instruction fees of Kshs 500,000 were five times the Schedule VI (j) minimum of Kshs 100,000 for an application for prerogative orders, unjustified since the suit raised a simple question of law, and that other items were taxed contrary to the ARO scale. The respondents defended the award as a proper exercise of discretion with reasons given. The court framed two issues: whether there were sufficient grounds for interfering with the taxing officer's ruling, and which orders were merited. Applying settled principles - interference only on error of principle or manifestly excessive quantum - and citing PZ Cussons, First American Bank of Kenya, Kipkorir Titoo & Kiara and Joreth Ltd, the court found the taxing officer's own ruling conceded the matter was not complex, so the five-fold increase was an error of principle. Instruction fees were reduced to Kshs 200,000; getting up fees to Kshs 66,666.66; other items remained at Kshs 46,943.43, giving a total award of Kshs 313,610.90. The reference was allowed with costs to the applicants.

Key legal issues

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01

Whether the taxing officer's award of Kshs 500,000 as instruction fees (five times the Schedule VI (j) minimum of Kshs 100,000) was based on an error of principle

Holding

Yes - the taxing officer found the matter was not complex and justified the increase only on the multiplicity of issues; the court held this was no valid justification, the award was manifestly high, and reduced the instruction fees to Kshs 200,000

Reasoning

The taxing officer's own ruling acknowledged that nothing suggested the matter was complex from the pleadings and judgment. The primary suit was a simple petition challenging removal of the respondents as members of the County Assembly Service Board, not certified as complex, with no multiplicity of issues in the strict sense and no large volumes of documents. Absent complexity or demonstrated extra work, a five-fold increase over the prescribed minimum was arbitrary and constituted an error of principle warranting interference.

02

The treatment of getting up fees upon reduction of instruction fees

Holding

Getting up fees reduced to one third of the reduced instruction fees, i.e. Kshs 66,666.66

Reasoning

The court applied the principle that getting up fees stands at one third of instruction fees; the reduction in instruction fees therefore automatically reduced the getting up fees accordingly, rather than retaining the original Kshs 166,000 or the applicants' proposed Kshs 33,333.33.

p. 6
03

Whether the other taxed items (drawings, attendance, registry attendance, hearing notices, copies) should be disturbed

Holding

No - they were properly determined according to the scale prescribed by Schedule 6 paragraphs 4, 5, 6 and 7 of the ARO and remain as taxed at Kshs 46,943.43

Reasoning

The court found these items had been correctly assessed on the prescribed scale and saw no error of principle or manifest excess justifying interference; only the instruction fees (and consequently getting up fees) were varied.

p. 6

Legal principles established

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  • A court will not interfere with a taxing officer's decision except where an error of principle is shown or the quantum is manifestly excessive or too low as to amount to an injustice.
  • Where the value of the subject matter is not ascertainable, the taxing officer may use discretion to assess instruction fee as considered just, taking into account the nature and importance of the cause, the interest of the parties, the general conduct of proceedings and all other relevant circumstances.
  • An increase over the prescribed minimum instruction fee must be justified by the complexity or nature of the matter; an unexplained five-fold increase over the minimum is an error of principle.

Court orders

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  1. 1.Instruction fees reduced from Kshs 500,000 to Kshs 200,000
  2. 2.Getting up fees set at one third of Kshs 200,000, equaling Kshs 66,666.66
  3. 3.Other items to remain as taxed, being Kshs 46,943.43
  4. 4.Total award of costs fixed at Kshs 313,610.90
  5. 5.Applicants awarded costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 89
  • Advocates Remuneration Order 2014Schedule 6 (including paragraphs (j), 1(j)(iii), 4(a)(i), 4(e), 7(b), 7(d), 4, 5, 6 and 7)
  • ELRC Procedure RulesRule 28(3)

Cases cited (10)

  • Geoffrey Makana Asanyo v Nakuru Water and Sanitation Limited & 8 others
  • Premchand Raichand Limited v Quarry Services of East Africa Limited
    [1973] EA 162
  • Joreth Limited v Kigano & Associates
    [2002] EA 92 / [2002] eKLR
  • Kyalo Mbobu T/A Kyalo & Associates Advocates v Jacob Juma
    [2015] eKLR
  • Paul Imison & another v Jodad Investment
    [2014] eKLR
  • Opa Pharmacy Ltd v Howse & McGeorge Ltd Kampala
    [1972] EA 233
  • PZ Cussons East Africa Limited v Kenya Revenue Authority
    [2014] eKLR
  • Thomas James Artur v Nyeri Electricity Undertaking
    [1969] EA 64
  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    NRB CA Civil Appeal No. 220 of 2004 [2005] eKLR
  • First American Bank of Kenya v Shah and others
    [2002] 1 EA 64
Jurisdiction invoked
Section 89 of the Civil Procedure Act and Schedule 6 of the Advocates Remuneration Order 2014, pursuant to leave granted on December 16, 2021 (reference against decision of the Deputy Registrar)

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, "County Assembly of Kericho & another v Bett & another (Miscellaneous Civil Cause E001 of 2020) [2022] KEELRC 1213 (KLR)", Case Analysis (2022). ELRC Petition No. 3B of 2019 (Reference – Chamber Summons dated January 5, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1213/eng@2022-05-12

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