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ELRCPartially AllowedChamber Summons dated 14th September 2023 (Reference)· [2023] KEELRC 3024 (KLR)

Kimonye v Kenya Meat Commission; Co-operative Bank Ltd (Athi River) (Garnishee) (Cause 465 of 2017) [2023] KEELRC 3024 (KLR)

Employment and Labour Relations Court
23 November 2023
2,262 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court set aside a costs ruling because the Taxing Master only considered the case's value and ignored all other required factors.

What this practically means

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Executive summary

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This is a ruling on a reference by way of Chamber Summons dated 14th September 2023, brought under Rules 7 and 11 of the Advocates Remuneration Order 2014 and Section 3A of the Civil Procedure Act by the judgment-debtor (Respondent), seeking to set aside, quash or vacate the Taxing Master's ruling of 8th September 2023, which taxed the Claimant's party-and-party Bill of Costs dated 19th April 2022 at Kshs.802,208.31, including instruction fees of Kshs.496,610/=. The Applicant alleged errors of principle: instruction fees taxed above scale without justification, disregard of the Respondent's submissions and superior-court authorities, failure to tax off ambiguous items on drawing of pleadings, and excessive copying charges contrary to Schedule 6A(S). The Decree-Holder/Claimant opposed, asserting the Taxing Master considered all relevant factors under Section 6A and that no error of principle had been demonstrated. The court isolated one issue: whether the reference was merited. Applying the settled test in Republic v Ministry of Agriculture ex parte Muchiri W. Njuguna, the court found the Deputy Registrar addressed the value of the subject matter exclusively, failed to consider the nature and importance of the matter, the parties' interests and the complexity of the dispute, did not demonstrate regard to the parties' submissions and authorities, and left ambiguous items untaxed. Holding that the Taxing Master erred in principle, the court set aside the ruling of 8th September 2023 and remanded the Bill of Costs dated 19th April 2022 for re-assessment by a different Taxing Master, with each party bearing its own costs.

Key legal issues

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01

Whether the Taxing Master committed errors of principle warranting interference with the taxation

Holding

Yes — the Taxing Master relied exclusively on the value of the subject matter, ignored other relevant statutory factors, did not address the parties' submissions and authorities, and failed to tax off ambiguous items

Reasoning

The court applied the settled test from Republic v Ministry of Agriculture ex parte Muchiri W. Njuguna and kindred authorities: interference lies only for error of principle or manifest excess. The ruling showed the Deputy Registrar addressed only the value of the subject matter in computing instruction fees, said nothing about the parties' submissions or authorities, and left ambiguous items un-taxed off. These omissions amounted to errors of principle, justifying setting aside and remittal for fresh taxation before a different Taxing Master.

p. 5
02

Whether the formula in Schedule 6 Part B of the Advocates Remuneration Order must be applied in assessing instruction fees

Holding

Yes — adherence to the formula is mandatory as the basis for determining the basic instruction fee

Reasoning

The court held that the formula in Schedule 6 Part B of the Advocates Remuneration Order is not optional; it must be adhered to as a basis for determining the basic instruction fee and other items. The Taxing Officer's exclusive focus on the ascertained value of the subject matter, without considering the nature and importance of the matter, the interests of the parties and the complexity of the dispute, contravened this requirement and the factors articulated in the authorities.

p. 5

Legal principles established

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  • A court may only interfere with a Taxing Master's decision where it is shown there was an error of principle or the fee awarded was manifestly excessive as to suggest an error of principle; failure to consider relevant factors (or consideration of irrelevant ones) is an error of principle.
  • The Taxing Master must consider the full complement of statutory factors — nature and importance of the matter, value of subject matter, interests of the parties and complexity — and address the submissions and authorities of the parties; addressing the value of the subject matter exclusively is an error of principle.

Court orders

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  1. 1.The Ruling of the Taxing Master dated 8th September 2023 is set aside
  2. 2.The party and party Bill of Costs dated 19th April 2022 is remanded for re-assessment by a different Taxing Master
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Advocates Remuneration Order, 2014Rules 7 and 11; Section 6A; Schedule 6A(S); Schedule 6 Part B
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 3A; Section 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (8)

  • Premchand Raichand Ltd & another v Quarry Services of East Africa Ltd & another
    (1972) CA 162
  • First American Bank of Kenya v Shah & another
    (2002) EA 64
  • Joreth Ltd v Kigano and Associates
    (2002) 1 EA 92
  • Ocean Commodities Inc & others v Standard Bank of SA Ltd & others
    (1984) (3) SA 15(A) at 18 F-G
  • Peter Muthoka & another v Ochieng & 3 others
    (2019) eKLR
  • Republic v Ministry of Agriculture & 2 others, Ex Parte Muchiri W. Njuguna & others
    (2006) eKLR
  • Kipkorir Tito & Kiara Advocates v Deposit Protection Fund Board
    (2005) eKLR
  • Ochieng, Onyango, Kibet and Ohaga Advocates v Adopt A Light Ltd
    HC Misc. 729 of 2006
Jurisdiction invoked
Rules 7 and 11 of the Advocates Remuneration Order, 2014 and Section 3A of the Civil Procedure Act (inherent jurisdiction over a reference against a Taxing Master's decision)

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, "Kimonye v Kenya Meat Commission; Co-operative Bank Ltd (Athi River) (Garnishee) (Cause 465 of 2017) [2023] KEELRC 3024 (KLR)", Case Analysis (2023). Chamber Summons dated 14th September 2023 (Reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3024/eng@2023-11-23

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