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ELRCOtherPetition dated 28th May 2020 (number not stated in judgment)· [2023] KEELRC 3345 (KLR)

Tallam & 41 others v County Government of Baringo & 6 others (Petition 10 of 2020) [2023] KEELRC 3345 (KLR)

Employment and Labour Relations Court
21 December 2023
MOMaureen Onyango
1,736 words in judgment
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The bottom line

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Kenyan employees who win concessions through an out-of-court settlement can still recover court costs, though the court halved the award because no hearing occurred.

What this practically means

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Executive summary

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The Petitioners, employees of the County Government of Baringo, filed a petition on 28th May 2020 seeking declarations that their constitutional rights had been infringed, confirmation as permanent and pensionable employees, payment of Kshs 19,124,192 in unpaid dues, and an injunction against victimisation. The 1st to 4th Respondents opposed through grounds of opposition arguing prematurity, non-exhaustion of internal mechanisms and misjoinder. Before the matter could be heard, the Respondents initiated out-of-court settlement, and on 16th May 2022 the parties by consent withdrew the petition, leaving only costs in dispute. After written submissions, the court framed one issue: whether the Petitioners were entitled to costs. Relying on section 12(4) of the Employment and Labour Relations Court Act and Rule 29 of the ELRC (Procedure) Rules 2016, and the principle that costs follow the event, the court held that the Petitioners, having substantially achieved their prayers through the settlement, were entitled to costs, especially since the Respondents themselves had sought the settlement and conceding earlier would have obviated the suit. However, because the suit never went to full hearing, the court awarded only 50% of the costs, to be agreed upon or taxed. Maureen Onyango J delivered the ruling virtually on 21st December 2023.

Key legal issues

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01

Whether the Petitioners are entitled to costs following consent withdrawal after settlement

Holding

Petitioners, having substantially succeeded through the settlement, are entitled to costs but only 50% since the suit did not proceed to hearing

Reasoning

The court exercised its discretion under section 12(4) of the ELRC Act and Rule 29 of the ELRC (Procedure) Rules 2016. The parties reached agreement substantially granting the petitioners' prayers, and it was the respondents who sought out-of-court settlement. Had the respondents conceded earlier, no suit would have been necessary. Since the suit did not proceed to full hearing, only half the costs were awarded.

p. 4
02

Whether the respondents could dispute the advocate-client relationship between the petitioners and their advocates

Holding

Impliedly rejected; respondents themselves contended they never took issue with the petitioners' advocates' locus

Reasoning

The petitioners' counsel argued instructions are a matter between advocate and client and respondents have no locus to dispute it. The respondents countered that they never disputed the advocates' authority during proceedings nor swore any affidavit to that effect, leaving the existence of the advocate-client relationship effectively unchallenged on the costs question.

p. 3

Legal principles established

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  • Costs follow the event and a substantially successful party is entitled to costs, subject to the court's discretion to award a reduced proportion

Court orders

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  1. 1.Petition withdrawn by consent save for costs (recorded 16th May 2022)
  2. 2.Petitioners awarded 50% of costs, to be agreed upon or taxed
Jurisdiction invoked
Article 162(2)(a) of the Constitution / Employment and Labour Relations Court Act (court's discretion on costs under section 12(4))

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, "Tallam & 41 others v County Government of Baringo & 6 others (Petition 10 of 2020) [2023] KEELRC 3345 (KLR)", Case Analysis (2023). Petition dated 28th May 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3345/eng@2023-12-21

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