Gachoka v Kisiwa Guest House Lodge Limited (Cause 806 of 2016) [2023] KEELRC 2521 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the taxing officer erred in principle in assessing instruction and getting-up fees
No error in principle established; the instruction fee of Kshs. 75,000 and getting-up fee of Kshs. 25,000 were per scale on the award of Kshs. 247,212, and the judgment sum need not cap the instruction fee as it represented one of several reliefs
The court noted the judgment of 5 November 2021 awarded Kshs. 247,212 after finding unfair termination. It held this was one of several reliefs, so the instruction fee need not be based on it. Item 1(a) at Kshs. 75,000 and 1(b) at one-third thereof were calculated per scale, so the attack on these items failed.
Whether items 2, 3, 5(v), 7 and 10 were excessively or erroneously assessed
The objections to these items were justified: the folio count was incorrect, certain attendances were not on the court record, service items lacked evidence, and item 10 lacked supporting documentation
The court found the Memorandum of Claim had 13 pages, not 42 folios as assessed, making item 2 and the consequential item 3 erroneous. Some claimed registry attendances were not part of the record. Items on service at Nairobi lacked evidence of actual service, and item 10 lacked schedules or receipts, warranting re-assessment.
Legal principles established
#- The core principle in taxing a party and party bill of costs is consideration of the instruction fee covering the advocate's work and the value of the subject matter, and the taxing master's discretion must be exercised judicially.
- A judgment sum awarded does not automatically fix the instruction fee, as it may represent only one of several reliefs granted.
- Costs items must be supported by evidence on the record; attendance and service items not appearing on the court record must be re-assessed or allowed at local rates.
Court orders
#- 1.The party and party bill of costs dated 14 February 2023 shall be re-assessed with the court's analysis taken into account
- 2.Items 2 and 3 (Memorandum of Claim and copies) to be re-assessed, the assessment of 42 folios being incorrect
- 3.Item 5(v) on court registry attendances to be re-assessed based on the actual record of the court
- 4.Items 7(b), (d), (f), (g), (h) and (j) on mention notices service at Nairobi to be supported by evidence of service, failing which assessment at local rates of service
- 5.Item 10 to be based on evidence of schedule of calls, transport costs, swearing fees and receipts
- 6.Each party to bear their own costs of the application
- Jurisdiction invoked
- Inherent jurisdiction of the Employment and Labour Relations Court over a reference against a taxing master's ruling (no specific provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gachoka v Kisiwa Guest House Lodge Limited (Cause 806 of 2016) [2023] KEELRC 2521 (KLR)", Case Analysis (2023). Not stated in the judgment (referred to as 'the reference herein'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2521/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.